Ohio & Michigan Work Visa Attorneys
Individuals that want to live and work in the United States typically obtain a work visa. Work visas encompass a variety of classifications. The appropriate work visa will depend upon the proposed position and job duties, as well as the applicant’s qualifications. Applications for virtually all work visas are filed on Form I-129 Petition for a Non-immigrant Worker by the prospective U.S. employer sponsor. Once the Form I-129 Petition for a Non-immigrant Worker has been approved, the foreign national employee can change their non-immigrant status if in the United States or obtain a visa from a U.S. Consulate or Embassy abroad. For more information pertaining to which work visa is appropriate for you and your situation, contact an experienced Columbus work visa attorney at Sam Shihab & Associates.
There are a variety of work visas available to foreign nationals seeking employment in the United States. Some of the more common work visas include:
Work visas can provide an avenue for foreign national employees to obtain an employment-based green card. Some classifications require the employer to file a labor certification to initiate the green card process, whereas others allow the employer to immediately file an I-140 Petition for Alien Worker on behalf of their foreign national employee. After the I-140 Immigrant Petition for Alien Worker has been approved, the foreign national employee may complete the final step in the green card process and file their I-485 Application to Register Permanent Residence or Adjust Status when their priority date is current. To fully understand the work visas for which an individual is eligible, as well as the applicable green card procedures, an experienced Columbus work visa attorney should be consulted.
The American Competitiveness in the Twenty-first Century Act
AC21: I-140 Approvable When Filed
AC21: I-140 Approvable When Filed
The American Competitiveness in the Twenty-First Century Act, Section 106(c) (AC21 106c) provides for the continued validity of an approved I-140 petition when a foreign national changes jobs or employers if the following conditions are met:
- Form I-485, Application To Adjust Status, has been filed and remains pending for 180 days or more; and
- The new job is in the same or a similar occupational classification as the original labor certification/I-140 position.
The portability provisions under AC21 106c are quite complex and matters can become especially complicated when a foreign national attempts to port to a new employer or position before their I-140 petition has been approved. As discussed below, the law in this area is extremely convoluted and it is highly recommended that an experienced immigration attorney be consulted anytime benefits are sought pursuant to AC21 law, particularly AC21 portability.
Unapproved I-140 Petition And I-485 Pending 180 Days
In certain situations, the I-140 petition and I-485 application may have been filed concurrently and, therefore, both remain pending for 180 days or more. It is important to note, the elapse of 180 days beyond the filing of an I-485 application does not automatically validate an unapproved I 140 petition for AC21 portability purposes. To qualify for I-140 portability, a pending I-140 petition must be, or have been, approvable when filed. Under no circumstances will a denied I 140 petition be considered valid for I-140 portability purposes.
Evaluating Unadjudicated I-140 Petitions
If a foreign national attempts to port to a new employer or position from an unapproved I-140 petition, the United States Citizenship and Immigration Services (USCIS) must first review and adjudicate the I-140 petition. Under AC21 rules, the I-140 petition must be approved in order to receive a favorable USCIS determination on an I-140 portability request. If the I-140 petition is approved, the USCIS will then undertake an analysis of whether the new position is in the same or a similar occupational classification as the labor certification/I-140 position.
Preponderance Of The Evidence Standard
When reviewing a pending I-140 petition to determine AC21 portability, the USCIS will apply a preponderance of the evidence standard. This means the evidence contained in the I-140 petition must establish that the foreign national’s claim is “probably true” or “more likely than not” true. If the I-140 petition meets this rather lenient standard, it will be approved by the USCIS.
Ability To Pay
If the I-140 petition is approvable but for an ability to pay issue, or some other issue that arises due to the passage of time after filing, the USCIS should approve the I-140 petition on it’s merits. Likewise, upon porting to a new employer or position from an approved I-140 petition, it is inappropriate for a USCIS adjudicator to reopen the “ability to pay” inquiry or request proof of the new employer’s ability to pay.
Matter of Al Wazzan
On October 18, 2005, the USCIS adopted the Administrative Appeals Office’s (AAO) decision in Matter of Al Wazzan. The Matter of Al Wazzan case established that an “unadjudicated Form I-140 petition is not made ‘valid’ merely through the act of filing the petition with USCIS or through the passage of 180 days.” To put it another way, a foreign national is not eligible for I-140 portability if their I-140 petition is denied or deniable at the time of filing, regardless of whether the portability request was made after the related I-485 application was pending for 180 days or more. Due to the complexity associated with AC21 law, one should always discuss the particulars of their case with experienced immigration counsel to avoid potential problems in the immigration process.
AC21: I-140 Portability
AC21: I-140 Portability
American Competitiveness in the Twenty-First Century Act
On October 17, 2000, The American Competitiveness in the Twenty-First Century Act (AC21) was signed into law by President Clinton. Among other things, the new AC21 law provided greater job flexibility to foreign nationals experiencing long delayed adjustment of status by allowing for I-140 portability.
Approved I-140 Petitions
AC21 106(c) allows for greater job flexibility for long delayed green card applicants. A foreign national may take advantage of AC21 portability and accept a new position with the same or a different employer if the following conditions are met:
- The foreign national’s I-485 application for adjustment of status (green card application) has been pending for 180 days or more; and
- The new job is in the same or a similar occupational classification as the job for which the original I-140 petition was approved.
In instances where the foreign national no longer intends to be employed by the original I-140 petitioner, the foreign national’s new employer should send a letter to the USCIS containing the new job title, job description and salary. The purpose of the letter is to verify that the new job exists and to provide the information necessary to determine if the new job is in the same or a similar occupational classification. Notably, a foreign national may also port to self-employment so long as the “same or similar occupational classification” requirement is met.
Unapproved I-140 Petitions
In certain situations, the I-140 petition and I-485 application to adjust status may have been filed concurrently and both remain pending for 180 days or more. Foreign nationals that attempt to move to a new position or employer with an unapproved I-140 petition are not automatically entitled to Section 106(c) portability under AC21. If a foreign national attempts to port to a new employer or position off of an unapproved I-140 petition, the USCIS must first review and approve the I-140 petition. Once the I-140 petition is approved, the USCIS will then examine the I-485 adjustment of status application to determine whether the new position is in the same or a similar occupational classification. Only if the I-140 petition is approved and the “same or similar occupational classification” requirement is satisfied will USCIS grant portability under Section 106(c).
Jurisdiction Of Immigration Judges To Apply INA Section 204(j)
In 2005, the Matter of Perez Vargas came before the Board of Immigration Appeals (BIA), the highest administrative body for interpreting and applying immigration laws. The BIA’s decisions are binding on immigration judges and the Department of Homeland Security, but subject to review by the Federal Courts. In the Matter of Perez Vargas, the BIA upheld the decision that immigration judges lack jurisdiction to determine whether an approved I-140 petition remains valid under Section 204(j) of the Immigration and Nationality Act (INA). INA Section 204(j) provides, in the event a foreign national’s adjustment of status application has been pending for 180 days or more, a foreign national can change jobs or employers and maintain their I-140 petition so long as the new job is in the same or a similar occupational classification.
Upon review by the Fourth Circuit in Perez-Vargas v. Gonzales, the Court vacated the BIA’s determination in Matter of Perez Vargas and held that immigration judges do have the authority to determine whether a foreign national’s new job is in the same or a similar occupational classification as the job approved in the I-140 petition and, accordingly, whether the foreign national’s approved I-140 petition remains valid under Section 204(j) of the INA. The Fifth Circuit (Sung v. Keisler) and Sixth Circuit (Matovski v. Gonzales) have heard similar cases and, consistent with the Fourth Circuit’s holding, overturned the BIA’s determination that immigration judges lack jurisdiction under INA Section 204(j).
AC21: I-140 No Longer Valid For Portability
AC21: I-140 No Longer Valid For Portability
Despite the greater job flexibility offered under Section 106(c) of the American Competitiveness in the Twenty-First Century Act (AC21 106c), there are a number of situations where the I-140 petition will no longer be considered valid for AC21 portability purposes, including:
- The I-140 petition is withdrawn before the I-485 application has been pending for 180 days or more;
- The approved I 140 petition is subsequently revoked by the United States Citizenship and Immigration Services (USCIS); or
- The I-140 petition is denied.
Though the issues described in detail below may seem relatively straight-forward in theory, AC21 law is extremely complex in its application. It is important to always consult with an experienced immigration attorney regarding the particular circumstances of your case to avoid potentially adverse effects in the immigration process.
I-140 Withdrawn Prior To 180 Days
In the event an I-140 petition (approved or unapproved) is withdrawn by the employer or revoked by the USCIS prior to the I-485 application pending for 180 days, the I-140 petition will no longer be valid for AC21 portability purposes. Further, it is also within the discretion of the USCIS adjudicator to deny the I-485 application immediately upon the withdrawal or revocation of the I-140 petition if the I-485 application has been pending less than 180 days.
Approved I-140 Withdrawn
Under certain circumstances, an employer may withdraw an approved I-140 petition if the foreign national beneficiary accepts employment with another employer in the same or a similar occupation. If an approved I-140 petition is withdrawn, it will nonetheless remain valid for AC21 portability purposes so long as the associated I-485 application has been pending for 180 days or more.
When an I-140 sponsoring employer requests that an approved I-140 petition be withdrawn, the USCIS will check whether evidence that the new position is in the same or a similar occupational classification has been submitted. If evidence of a new qualifying offer of employment has not been received by the USCIS, a Notice of Intent to Deny (NOID) the pending I-485 application will be issued. A timely response to the NOID, containing the evidence necessary to prove there is a new offer of employment in the same or a similar occupational classification, will be required in order for the underlying I-140 petition to remain valid. The USCIS adjudicator has, within his or her discretion, the ability to immediately deny a pending I-485 application if there is no response to the NOID or the response fails to adequately show a valid offer of employment in the same or a similar occupational classification.
Reasons For I-140 Revocation
Fraud Or Erroneous Approval
The USCIS can revoke a previously approved I-140 petition, and immediately deny the corresponding I-485 application, if they determine fraud was involved or if the petition should not have been approved originally. The foreign national beneficiary does not have to be working for the I-140 sponsoring company prior to the approval of the I-485 application. However, an I 140 petition will be considered fraudulent if the sponsoring employer and foreign national beneficiary did not truly intend to engage in a bona fide employment relationship upon the approval of the I-485 application. The sponsoring employer and foreign national beneficiary must have genuinely intended to undertake the employment relationship at both the I-140 petition and I-485 application filing stages (if not filed concurrently).
Revocation Or Invalidation Of The Labor Certification
Revocation of an approved I-140 petition may also be premised upon the invalidation of the underlying labor certification. The Department of Labor may revoke an approved labor certification upon finding that the initial certification was not justified. Likewise, the Department of State and/or the Department of Homeland Security may invalidate a previously approved labor certification if it is determined that there was fraud or a willful misrepresentation of a material fact in the labor certification application. If the labor certification supporting the I 140 petition is subsequently revoked or invalidated, the I-140 petition is no longer valid.
If a pending I-140 petition is denied, it is no longer valid for AC21 portability purposes. The timing of the denial is not taken into consideration by the USCIS. Accordingly, even if the I-140 petition was denied after the I-485 application was pending for 180 days and/or after a request for portability was received by the USCIS, an I-140 denial will invalidate the I-140 petition for portability purposes.
AC21: Successful I-140 Portability
AC21: Successful I-140 Portability
With the implementation of The American Competitiveness in the Twenty-First Century Act (AC21) came enhanced portability for foreign nationals whose application for adjustment of status was long delayed. In other words, a foreign national, whose I-485 application has been pending for 180 days or more, may still be eligible for employment-based adjustment of status (I-485 approval) even though they are no longer working for the I-140 petitioning employer or in the labor certification/I-140 position.
Essentially, I-140 portability allows a foreign national to maintain the validity of their I-140 petition even if they are no longer working for the original labor certification/I-140 sponsoring employer or in the original labor certification/I-140 position. The requirements for I 140 portability, however, can be quite complex as discussed below. It is highly advisable to seek the assistance of an experienced immigration attorney when dealing with AC21 portability issues to avoid unnecessary delays or possible negative consequences in the permanent resident process.
Same Or Similar Occupational Classification
To successfully move to a new position pursuant to I-140 portability, a foreign national’s new position must be in the same or a similar occupational classification. There are three key criteria the United States Citizenship and Immigration Services (USCIS) adjudicators take into account when determining whether two jobs are in the same or a similar occupation classification:
- Job descriptions
- Dictionary of Occupational Titles (DOT) or Standard Occupational Classification (SOC) codes
The USCIS adjudicators will compare the job duties in the labor certification/I-140 petition with the job duties for the new position. The more closely the job descriptions for the two positions mirror one another, the more likely the jobs are in the same or a similar occupational classification.
Similarly, USCIS adjudicators will examine the DOT or SOC code assigned to each position. The closer the DOT/SOC codes, the more likely the positions are in the same or a similar occupational classification. The DOT/SOC code is typically assigned when a labor certification is required prior to filing the I-140 petition, but the USCIS adjudicator will consider what DOT/SOC code would be appropriate if none is assigned.
The DOT and SOC systems were created to track and statistically analyze occupation related data. The DOT system, created by the Department of Labor’s Employment and Training Administration and last updated in 1991, is the predecessor to the SOC system. The SOC system, developed by the Department of Labor’s Bureau of Labor Statistics, groups all jobs into one of over 820 occupations according to their occupational definition.
A discrepancy in wage between the labor certification/I-140 position and the new position is not a justifiable basis alone to deny an I-485 adjustment of status application in portability cases. However, a large discrepancy between the new position wage and the labor certification/I-140 position wage can be a “red flag” to USCIS adjudicators that the positions may not be in the same or a similar occupational classification. Accordingly, USCIS adjudicators are allowed to take wage discrepancies into consideration, but cannot use them as the sole basis for denying an adjustment application in a portability case.
The geographic location of the new position does not impact the analysis of I-140 portability. So long as the new position satisfies the same or a similar occupational classification requirement, the new position can be in the same or a different geographic location.
A foreign national can “port” to self-employment if the same or similar occupational classification requirement is met, but it is important to note that additional legal complexities arise when dealing with self-employment. The USCIS will require evidence, likely through an RFE, proving that the self-employment position and employer are both legitimate.
Further, porting to self-employment may raise legal questions regarding the true intention behind the I 140 petition. For employer sponsored adjustment of status, the I 140 petitioning employer and foreign national beneficiary must have genuinely intended, at the time both the I-140 petition and I-485 application were filed, to undertake an employment relationship upon the foreign national’s adjustment of status. The I-140 documents must support this assumption or additional evidence may be requested by the USCIS. Again, there are many sophisticated legal issues surrounding self-employment, and AC21 rules in general, and it is highly recommended that assistance from an experienced immigration attorney be sought to avoid delays or possible negative consequences in the immigration process.
Employment based Immigrant Visa Petition
Overview of the Employment Based Permanent Residency Application
Overview of the Employment Based Permanent Residency Application
For almost all foreign applying in the employment-based preference categories, the permanent resident or green card process consists of three key steps:
- Labor certification; Required in all EB-3 petitions and most EB-2 petitions
- I-140 Immigrant Petition for Alien Worker (I-140 Immigrant Petition); and
- I-485 Application to Register Permanent Residence or Adjust Status (I-485 Application) or consular processing of an immigrant visa.
Before a foreign national in the EB-2 or EB-3 category can apply for consular processing of an immigrant visa or adjust status, they must have an approved I-140 Immigrant Petition. The I-140 Immigrant Petition can be filed once the labor certification, if required, has been approved. The last step in the green card process can be completed when a foreign national’s priority date is current on the U.S. Department of State’s monthly Visa Bulletin. At that time, the foreign national may either file an I-485 Application to adjust status if in the United States or proceed with consular immigrant visa processing if outside of the United States.
Each year approximately 140,000 employment-based immigrant visas are available for foreign nationals seeking to immigrate to the United States based on their job skills. As there are inevitably more foreign nationals seeking permanent residence than immigrant visas available, the United States Citizenship and Immigration Services (USCIS) utilizes a system to allocate visas according to preference categories and countries of birth.
Employment-Based Preference Categories
To fully understand the U.S. immigrant visa system for employment-based visas, it is important to appreciate the different employment preference categories. There are five employment-based preference categories:
- EB-1: The first preference category is reserved for foreign nationals of extraordinary ability in the sciences, arts, education, business, or athletics as demonstrated through sustained national or international acclaim; outstanding professors and researchers who can demonstrate international recognition for their outstanding achievements in a particular academic field; or multinational managers or executives. The first preference category receives up to 28.6% of the annual number of visas available worldwide, including any unused visas remaining in the fourth and fifth preference categories. No Labor Certification required.
- EB-2: The second preference category is for foreign nationals that possess, and whose positions require, an advanced degree or a Bachelor’s degree plus five years of progressive experience; or foreign nationals that have “exceptional ability” – a degree of expertise significantly above that ordinarily encountered – in the sciences, arts, or business. The second preference category receives up to 28.6% of the annual number of visas available worldwide, including any unused visas remaining in the first preference category. Most applicants in this category require the filing of a Labor Certification, unless you can obtain a National Interest Waiver.
- EB-3: The third preference category applies to professionals that possess a Bachelor’s degree or higher and are working in a position for which an insufficient number of qualified U.S. workers are available; or certain skilled and unskilled workers that are working in a position for which there are an insufficient number of qualified U.S. workers available. The third preference category receives up to 28.6% of the annual number of visas available worldwide, including any unused visas remaining in the first and second preference categories.
- EB-4: The fourth preference category is reserved for special immigrants including religious ministers and workers, broadcasters, Iraqi/Afghan translators, Iraqis who have assisted the United States, international organization employees, physicians, armed forces members, Panama Canal Zone employees, retired NATO-6 employees, and spouses and children of deceased NATO-6 employees. The fourth preference category receives up to 7.1% of the annual number of visas available worldwide. Labor Certification is not required for this category.
- EB-5: The fifth preference category is for certain foreign national business investors who have invested a significant amount of money (either $1,000,000 or $500,000 if the investment is made in a “targeted employment area”) in a new commercial enterprise that employs at least 10 full-time U.S. workers. The fifth preference category receives up to 7.1% of the annual number of visas available worldwide. Labor Certification is not required for this category.
“Per Country” Visa Quotas
In addition to the limits placed on the number of employment-based immigrant visas available overall, there are “per country” quotas placed on the number of visas allocated to any particular country. These per country limits are designed to prevent individuals born in any one country, regardless of the individual’s citizenship, from receiving more than 7% of the total number of employment-based and family-based visas available annually. Moreover, no more than 2% of the annual visas available can be issued to dependents born in any one country.
The U.S. Department of State issues a monthly Visa Bulletin that summarizes the availability of immigrant numbers during that specific month for both family-based and employment-based visas. The Visa Bulletin will indicate whether each preference category cross-referenced with a particular country is “current,” “oversubscribed,” or “unavailable”. Current categories are designated with a “C” and, accordingly, the USCIS will accept I-485 Applications or proceed with consular immigrant visa processing for individuals in such categories immediately. Unavailable categories are assigned a “U” which means the USCIS is not accepting any I-485 Applications or conducting consular immigrant visa processing for individuals in that category.
If the preference category for a specific country is oversubscribed, a cut-off date will appear on the Visa Bulletin. In such categories, the USCIS will only accept I-485 Applications or proceed with consular processing for individuals with priority dates prior to the cut-off date. For example, the November 2009 Visa Bulletin may state that the cut-off date for individuals born in India in the EB-2 category is January 22, 2005. Thus, the USCIS will only accept I-485 Applications or proceed with consular processing for individuals with priority dates before January 22, 2005.
Employer Compliance of US Immigration Law
An Overview of Employer Compliance of US Immigration Law
An overview of Employer Compilance of US immigration Law
It is imperative for U.S. employers to properly document their compliance with labor and immigration regulations in the event of an audit by the Department of Labor (DOL) or an investigation by the Department of Homeland Security (DHS). Employers have the complicated task of not only ensuring their foreign national workers are employed lawfully, but also simultaneously preventing unlawful discrimination against employees based on their national origin or citizenship status. Though the myriad of applicable laws and regulations is quite complex, employers must be in constant compliance or face harsh penalties, possibly criminal, from the U.S. government.
It is incumbent upon U.S. employers to fully understand and comply with their posting, notice and reporting requirements for their foreign national employees. Each immigration classification has unique employment and documentation requirements. For example, employers with H-1B workers have specific notice posting, wage and non-benching requirements. The employer is responsible for understanding and documenting their compliance with the requirements for each classification of worker employed. Proper recordkeeping is a vital component to employer compliance with immigration regulations.
Form I-9 Compliance
Form I-9 is a key record that all employers are required to maintain. U.S. employers must verify the identity and work authorization of any employee, U.S. citizen or non-citizen, hired after November 6, 1986 on Form I-9. Form I-9 requires the employer and employee to provide the following information:
- Name (including maiden name if applicable);
- Social security number;
- Date of birth;
- Citizenship status;
- Two forms of unexpired identification;
- Date employment commenced; and
- Signatures of the employer representative and employee.
In some instances, Form I-9 re-verification or updating may be necessary. If an employee’s work authorization is set to expire, their Form I-9 must be updated with new work authorization documentation on or before the expiration date. It is the responsibility of the U.S. employer to know when Form I 9 execution, re-verification or updating is required.
Employers also have the option and, under certain circumstances are required, to utilize the federal government’s electronic employment verification system, E-Verify. Employers should consult with experienced immigration counsel to determine if they are required to utilize E Verify and to understand the advantages and disadvantages of the system.
Social Security No Match Letter
A U.S. employer that receives a social security no match letter must comply with certain requirements to maintain their immunity in the event they have unintentionally employed an illegal worker. The Social Security Administration (SSA) matches the names and social security numbers reported on Form W-2 to those contained in the SSA’s database. If the reported name and social security number do not match any contained in the SSA’s database, the employer will receive a no match letter. The no match letter is designed to provide the employer with notice that their records do not match the SSA’s and give the employee an opportunity to correct any erroneous information. The DHS and SSA suggest an employer take the following steps if they receive a no match letter:
- Confirm there was not a recordkeeping error on the employer’s part;
- Verify with the employee the accuracy of the employment records; and
- Request that the employee resolve the discrepancy with the SSA.
If the issue is able to be resolved, the employer should correct the information with the SSA per the instructions contained in the no match letter. If the issue is not resolved, the employer may attempt to verify the employee’s work authorization through other documentation. Employers that continue to employ individuals without being able to verify their work authorization are not entitled to safe harbor immunity and risk liability for knowingly employing an unauthorized worker.
Employers are prohibited from discriminating against employment eligible individuals based on their national origin or citizenship status pursuant to the Immigration and Nationality Act. Accordingly, U.S. employers cannot refuse to hire or decide to fire a foreign national because their work authorization expires on a future date. It is also considered discrimination for employers to specify which Form I-9 documents they will accept to verify employment eligibility.
Enforcement And Penalties
The DHS and DOL have the authority to investigate and assess penalties for immigration law violations. Similarly, the Office of Special Counsel for Immigration Related Unfair Employment Practices investigates allegations of discrimination. Historically, enforcement efforts have been largely targeted at illegal workers. More recently, however, the DHS has begun targeting the employers that employ unauthorized foreign workers. During investigations, the DHS and DOL will try to not only uncover evidence of immigration law violations, but also mistreatment of workers, money laundering and other criminal conduct. The DHS and DOL have the ability to use civil and administrative tools, including fines and debarment, to penalize employers.
Compliance Guide For H-1B Employers
Compliance Guide For H-1B Employers
H-1B employers have a myriad of obligations with regards to their H-1B employees before, during and after their employment. It is important for H-1B sponsors to stringently uphold their H-1B commitments to avoid potentially severe penalties from the United States Citizenship and Immigration Services (USCIS) and/or the Department of Labor (DOL), including debarment from the H-1B program. The following is a series of H-1B checklists to help employers ensure they are in compliance with the H-1B regulations at all times.
Step 1: Obligations Prior to Hiring an H-1B Employee
An H-1B employer must make certain of the following prior to hiring an H-1B worker:
- The H-1B job qualifies as a specialty occupation.
- The H-1B worker meets the qualifications for the H-1B job, including the completion of a Bachelor’s degree or higher in a field related to the occupation and, if required, the appropriate state or local licenses.
- The prevailing wage for the occupation in the geographic area of employment has been calculated or requested from the State Workforce Agency.
- A Labor Condition Application (LCA) covering the H-1B worker has been submitted to and certified by the DOL.
- The USCIS has approved the employer’s H-1B petition.
- Workers in the same occupation have been notified of the intention to hire an H 1B worker, either by notifying the appropriate bargaining representative or, if no bargaining representative exists, by posting conspicuous notices at the place of intended employment.
Step 2: Obligations While Employing an H-1B Employee
While employing an H-1B worker, H-1B sponsoring companies must always do the following to remain in compliance with H-1B requirements:
- Provide a copy of the certified LCA to the H-1B employee.
- Pay the H-1B worker the required wage which is the greater of the actual wage paid by the employer to similarly situated workers or the prevailing wage for the occupation.
- Offer the H-1B worker benefits on the same basis as U.S. workers.
- Ensure the working conditions of U.S. employees are not adversely affected and provide H 1B employees with the same working conditions as U.S. employees.
- Maintain a public access file for each employee in H-1B status, located either at the employer’s principal place of business or the place of employment
- Keep payroll records for all employees in the H-1B worker’s occupational classification.
- Notify the USCIS of any material changes in the terms and conditions of the H-1B worker’s employment.
Step 3: Obligations After Employing an H-1B Employee
H-1B employers have continuing obligations after the termination or departure of an H 1B worker including:
- Promptly notifying the USCIS of the H-1B employee’s termination.
- Providing one-way transportation for the H-1B employee (not including H-1B dependents) to the place of their last residence abroad if they are not staying in the U.S. to change status or complete an H 1B transfer to another employer.
- Continuing to maintain a public access file for each employee in H-1B visa status for one year beyond the H-1B worker’s last day of employment under the LCA.
- Continuing to keep payroll records for all employees in the H-1B worker’s occupational classification for at least 3 years.
Step 4: H-1B Employer Prohibitions
In addition to the affirmative obligations H-1B employers have before, during and after an H-1B worker’s employment, H-1B employers should never engage in the following:
- Misrepresenting any information to the USCIS or DOL on the LCA or H-1B petition.
- Requiring or accepting repayment from the H-1B employee for the H-1B visa filing fees.
- Making any material changes to an H-1B employee’s job duties or work location without filing a new LCA and/or an H-1B amendment.
- Charging an H-1B worker a penalty for not remaining employed with the H-1B sponsoring company for a certain period of time.
- Placing any H-1B employee at a work location where there is a strike, lockout or stoppage of work in the occupational classification.
- Benching an H-1B employee by failing to pay the H-1B employee their full H-1B salary during non-productive time due to a decision by the employer.
- Employing an unlicensed H-1B employee in an occupation that requires a state or local license.
H-1B Employer Obligations
H-1B Employer Obligations
Employers undertake specific commitments when employing H-1B workers and, by filing a Labor Condition Application (LCA) and H-1B petition, certify to the Department of Labor (DOL) and United States Citizenship and Immigration Services (USCIS) that they will adhere to all H-1B requirements. Consequently, H-1B sponsors must fully understand and uphold their obligations as H-1B employers.
Labor Condition Application Attestations
As part of the H-1B petition, H-1B sponsoring companies must file and receive a certified Labor Condition Application (LCA) from the DOL. By submitting an LCA, the H-1B employer is attesting to the DOL that the following conditions will be met:
- The H-1B employer will pay the H-1B worker the required wage which is the greater of the actual wage paid by the employer to similarly situated workers or the prevailing wage for the occupation in the geographic area of employment.
- The H-1B employer will offer the H-1B worker benefits on the same basis as U.S. workers.
- The H-1B employer will not allow the working conditions of U.S. employees to be adversely affected and H-1B employees will be provided with the same working conditions as U.S. employees.
- The H-1B employer will not place any H-1B employees at a work location where there is a strike, lockout or stoppage of work in the occupational classification.
- The H-1B employer will notify workers in the same occupation of the intention to hire an H 1B worker, either by notifying the appropriate bargaining representative or, if no bargaining representative exists, by posting conspicuous notices at the place of intended employment.
- The H-1B employer will provide a copy of the certified LCA to the H-1B employee.
H-1B sponsoring companies are generally considered H-1B dependent if 15% or more of their workforce is H-1B employees (different calculations apply to employers with 50 or less employees). Additional obligations are placed upon H-1B dependent employers and, it is important to note, the Employ American Workers Act categorizes all employers receiving TARP funding as H-1B dependent for new H 1B hires.
In order to determine the required wage, an H-1B employer must know the prevailing wage for the H-1B job. Pursuant to the Immigration and Nationality Act, H-1B employers can obtain a prevailing wage by (1) requesting a prevailing wage from the State Workforce Agency (SWA) in the state where the H 1B job is located; (2) using a salary survey conducted by a trustworthy, independent source; or (3) using another legitimate source of information.
As there are several ways to determine the H-1B job’s prevailing wage, the H-1B employer must document the methodology used in their determination. It is noteworthy to mention that employers who obtain a SWA prevailing wage will be granted safe harbor protection for the wage in the event of a compliance investigation.
The H-1B rules require an employer to submit an amended H-1B petition, including new LCA, if there is a material change in the conditions of an H-1B worker’s employment. Material changes are not explicitly defined by the USCIS, but typically include changes in the following:
- Location of employment, including the addition of work locations;
- Job description or position, including lateral moves or promotions;
- Wages (generally only decreases);
- Number of hours worked (part-time vs. full-time); and
- Employer identity, including mergers, acquisitions and H-1B transfers.
Although there is no statutorily required timeframe for filing an H-1B amendment, it is recommended that, whenever possible, the amendment be completed before any material changes.
Benching And Termination
H-1B sponsoring companies have an on-going obligation to pay H-1B workers their full, required wage. Failing to pay an H-1B worker their full, required wage during non-productive time is known as “benching” and is strictly prohibited by the H-1B rules. The H-1B employer cannot, based on their decision or an employee’s lack of a permit or license, place an H-1B worker in non-productive status with no pay. For example, H-1B employers cannot temporarily layoff or furlough H 1B employees without continuing to pay them their full, required wage.
Accordingly, the obligation to pay an H-1B worker their full, required wage only ceases if the employee’s H 1B status expires or the employee is subject to a bona fide termination. If an H 1B worker is terminated prior to the expiration of their H-1B status, the employer is required to provide the employee transportation to their last residence abroad. Moreover, the H 1B employer is barred from accepting reimbursement from an H-1B employee for costs associated with applying for the H-1B visa and, likewise, may not require an H-1B employee to pay a monetary penalty for leaving prior to an agreed upon date.
Interplay between H-1B And Immigrant Visas
Interplay between H-1B And Immigrant Visas
Dual Intent Doctrine
Foreign nationals seeking to establish permanent residence in the United States, by definition, have immigrant intent and typically hold immigrant visas. Certain nonimmigrant visas including the H 1B visa, though, allow for dual intent. The dual intent doctrine provides that foreign nationals holding certain nonimmigrant visas can demonstrate future immigrant intent while present in the United States without invalidating their nonimmigrant status. Thus, H-1B visa holders can lawfully maintain their nonimmigrant status while completing the H 1B to green card process.
Employment-Based Immigrant Visas
Pursuant to the Immigration and Nationality Act, a minimum of 140,000 employment-based immigrant visas are available each year. The visas are issued based on the five employment preference categories outlined below:
- The first preference category is for priority workers including (1) persons of extraordinary ability in the sciences, arts, education, business, or athletics; (2) outstanding professors and researchers; and (3) certain multinational executives and managers.
- The second preference category is for professionals with advanced degrees or persons of exceptional ability in the arts, sciences, or business.
- The third preference category is for skilled workers, professionals with Bachelor’s degrees and other workers.
- The fourth preference category is for special immigrants including, but not limited to certain broadcasters, employees of the U.S abroad, foreign medical graduates, and religious workers.
- The fifth preference category is for employment creation investors or foreign nationals who invest $500,000 to $1,000,000 in a commercial enterprise in the U.S. and create at least 10 new full-time jobs for non-family member U.S. citizens, permanent residents or other lawful immigrants.
H-1B immigration primarily involves the second and third employment-based preference categories and, therefore, requires a labor certification prior to filing the I-140 Immigrant Petition for Alien Worker in the H-1B green card process.
To hire an H-1B employee to work permanently in the United States, the H-1B employer must obtain a labor certification from the Department of Labor (DOL). Labor certification involves testing the U.S. labor market for qualified U.S. workers available to fill the H-1B job. The H-1B employer must conduct recruitment for the foreign national’s permanent position, including setting forth the minimum requirements for and advertising the position pursuant to DOL regulations. The results of the H-1B employer’s recruitment are reported to the DOL through the filing of Form ETA 9089. Generally, the DOL will certify the employer’s ETA 9089 application if the employer has adequately shown the minimum requirements for the position are not too restrictive, U.S. workers were recruited for the position in good faith and there were no qualified U.S. workers available or willing to accept the position.
H-1B Extensions Beyond The Sixth Year
A pending or certified permanent labor certification may entitle a foreign national to H-1B extensions beyond the six year maximum. Pursuant to the American Competitiveness in the Twenty-First Century Act, foreign nationals under the following circumstances are entitled to H 1B extensions, in one year increments, beyond the six year maximum:
- Foreign nationals for which a permanent labor certification application was filed and has been pending for 365 days or more; or
- Foreign nationals for which a permanent labor certification application has been certified and, within the validity period of the approved labor certification, an I-140 Immigrant Petition for Alien Worker has been timely filed.
Moreover, foreign nationals that are eligible to adjust to permanent resident status but for per country limitations on immigrant visas are eligible for three year H-1B extensions until the time their green card application has been adjudicated.
H-1B And State Licensure
H-1B And State Licensure
Certain H-1B jobs, such as healthcare worker or teacher, may require a state or local license as part of the minimum requirements for entry into the occupation. Considering an H-1B petition must show the foreign national beneficiary meets the qualifications for the position, H-1B approval for such positions is conditioned upon the H-1B employee possessing any licenses required by the state or local authorities. In some states, however, H-1B employees must demonstrate they are legally authorized to work in the U.S. prior to receiving a state or local license. Thus, an impossible situation arises when an H 1B employee’s state or local licensure is contingent upon having an approved H-1B petition and obtaining H-1B approval is contingent upon having received the requisite license.
Temporary H-1B Approval
The United States Citizenship and Immigration Services (USCIS) has the authority to modify H 1B procedures and temporarily approve an H-1B petition if the foreign national needs H 1B documents to obtain a state or local license. In order to receive temporary H-1B approval, the H 1B petition must verify to the USCIS that at the time of filing:
- All of the necessary requirements for obtaining the license were met including education, training, experience and other substantive requirements;
- The H-1B employee had applied to the state or local licensing board for the required license; and
- The H-1B petition was approvable in all other respects.
The USCIS may also grant temporary H-1B approval to foreign nationals who have not been able to obtain a social security card, but whose H-1B jobs require one.
Validity Period Of H-1B Approval
The USCIS will temporarily approve H-1B visa status, without the required license, for a period of one year. The one year validity period allows the H-1B employee time to obtain the required license, but does not entitle the H-1B employee to work in the profession without licensure. It is absolutely necessary for the H-1B employee to obtain the necessary license prior to working in the profession. A few examples of specialty occupations that may require a license are physical therapist, medical technician, pharmacist, teacher and attorney.
To maintain valid H-1B status and be eligible for H-1B visa extensions, the H-1B employee must actually obtain the state or local license. Any H-1B extension petition that fails to show the H 1B employee has the required license will be denied.
H-1B sponsoring companies have specific obligations with regards to their H-1B visa holders. To ensure compliance with H-1B requirements, the Department of Labor (DOL) may initiate audit or investigation. Though an H 1B employer may have been selected for an audit at random, most investigations are a result of an employee complaint to the DOL. In the event of an audit, the H-1B employer will need to have the proper records and H-1B documents to avoid penalties and possible suspension or debarment from the H-1B visa program.
Public Access File
All H-1B sponsors are required to maintain a public access file for each employee in H-1B status. The public access file can be located either at the employer’s principal place of business or the place of employment and must contain the following:
- Copy of the signed and certified Form ETA 9035, Labor Condition Application (LCA) under which the H 1B worker is employed;
- Documentation, such as an offer letter or employment agreement, that provides evidence of the wage rate being paid to the H-1B worker;
- Explanation of the methodology used to calculate the actual wage the H-1B employer has paid or will pay employees in the occupation;
- Documentation and an explanation of how the prevailing wage for the occupation was determined;
- Summary of the benefits U.S. workers in the same occupational classification receive and, if not all workers receive the same benefits, an explanation of any differences; and
- Documentation that notice of the LCA filing was given to the appropriate bargaining representative or, if no bargaining representative exists, a notice of the LCA filing was posted for employees in the occupational classification.
If the H-1B employer undergoes a change in corporate structure, the public access file must also include a sworn statement by the new H-1B sponsoring company accepting all obligations, liabilities and undertakings under the LCAs filed by the predecessor employer. This sworn statement should be accompanied by a list of the affected LCAs, their dates of certification, and a description of the actual wage system and employer identification number (EIN) of the new H 1B employer. Further, H-1B dependent employers and willful violators are subject to additional public access file requirements.
Pursuant to H-1B regulations, H-1B sponsors must maintain the records described above for one year beyond the last date on which any H-1B worker is employed under the LCA. If no foreign national is ever employed under the LCA, the records should be kept one year from the date the LCA expires or is withdrawn. Moreover, H-1B employers must make their public access files available for public inspection one working day after the LCA is filed with the DOL.
Though payroll records are not mandatory as part of the public access file, the DOL requires H 1B employers to keep the payroll records of all employees in the H-1B worker’s occupational classification for at least three years (from the date the record was created). In the event of an enforcement action, the payroll records must be preserved until the enforcement action is completed.
Employer Audits And Investigations
The H-1B employer usually, but not always, receives notice of the H-1B audit prior to the commencement of the investigation. During an investigation, the DOL will audit the employer’s practices and records while searching for violations related to employees holding H-1B visa status. At the conclusion of the investigation, the H-1B employer will receive a determination letter that outlines the findings of the investigation, including a determination of whether any of the violations were found to be substantial or willful. Some examples of violations that may be discovered in an H-1B audit include but are not limited to:
- Failing to provide notice of an LCA filing to the bargaining representative or employees in the occupational classification;
- Misrepresenting information contained in the LCA;
- Failing to pay the H-1B salary for certain non-productive time or failing to provide benefits;
- Failing to maintain the proper information in the public access file; and
- Failing to observe the no strike or lockout provisions contained in the LCA.
The determination letter will also designate the penalties the H-1B employer faces for the violations.
By signing the LCA, the H 1B visa sponsor is certifying to the DOL that the information in the LCA is truthful and accurate, as well as accepting the obligations associated with the employment of H-1B workers. The penalties for non-compliance can be steep and include fines ranging from $1,000 to $35,000 per violation, the payment of back wages, and suspension or disbarment from the H-1B and other visa programs. For minor violations, the DOL will consider the H-1B employer to be in overall compliance if the employer:
- Has made a good faith effort to comply with the H-1B regulations;
- Voluntarily corrects any violations within 10 business days;
- Does not have a history of willful or numerous violations; and
- If a prevailing wage violation, can establish the wage was calculated consistent with industry norms.
The H-1B employer is subject to non-compliance penalties beginning on the date their LCA is certified or the date the H-1B employee commences employment, whichever is earlier.
The H-1B sponsor (or any interested party) has 15 days from the date of the determination letter to request a hearing before an Administrative Law Judge (ALJ). If the H 1B sponsor is dissatisfied with the ALJ’s determination, they (or any interested party) may request a final review of the ALJ’s decision by the Department of Labor’s Administrative Review Board.
H-1B Dependent Employers
H-1B Dependent Employers
Employers that are considered H-1B dependent have additional obligations with regards to their H-1B and U.S. workers. An H-1B dependent employer is generally one in which H-1B employees comprise 15% or more of the total workforce, but the calculation is different for employers with 50 employees or less. H-1B dependent employers must adhere to the following additional obligations:
- The H-1B employer will not layoff any similarly employed U.S. worker 90 days before or after applying for H-1B status, or an extension of status for any H-1B worker;
- The H-1B employer will not place any H-1B worker at the worksite of another employer that has laid off similarly employed U.S. workers 90 days before or after the placement of the H-1B worker; and
- The H-1B employer will take good faith steps to recruit U.S. workers for the H-1B job and will offer the job to any U.S. applicant who is equally or better qualified than the H-1B worker.
If an H-1B dependent employer hires only H-1B workers that possess a Master’s degree or higher and are paid a minimum of $60,000 annually, the H-1B dependent employer is exempt from the additional obligations described above. It is important to note, the Employ American Workers Act categorizes all employers receiving TARP funding as H-1B dependent and requires them to fulfill the additional obligations placed upon H-1B dependent employers for any new H 1B hires.
H-1B Request For Evidence
H-1B Request For Evidence
To obtain H-1B status, a U.S. employer must submit an H-1B petition to the United States Citizenship and Immigration Services (USCIS). The purpose of the H-1B petition is to prove the H-1B employer has a legitimate opening in a specialty occupation and that the foreign national beneficiary has the qualifications to fill the position. If during H-1B processing the petition is found to lack the required initial evidence or the evidence submitted fails to establish eligibility, the USCIS may (1) deny the petition, (2) issue a Notice of Intent to Deny (NOID) or (3) issue a Request for Evidence (RFE). The USCIS adjudicators have discretion regarding whether to deny a petition for lack of evidence, but are encouraged to issue an RFE or NOID in lieu of an immediate denial.
An RFE is sent to the H-1B sponsor as a written request for information and is typically printed on blue paper. It will indicate the type of evidence, initial or additional, that the USCIS adjudicator needs and is intended to provide the H 1B sponsor with notice of the evidentiary deficiency and adequate time to respond. The USCIS can assign different time periods for responding to an RFE, but the maximum amount of time to respond cannot exceed 12 weeks. Moreover, extensions of time will not be granted and all information must be submitted in one filing.
It is recommended that the H-1B sponsor completely respond to every RFE question and include the original RFE notice in the response. The USCIS will grant the foreign national H-1B visa status if the RFE response sufficiently addresses the petition’s initial evidentiary deficiencies.
The H-1B sponsor may also submit a partial response and request a decision based on the record, or withdraw the H 1B petition. If the H-1B sponsor does not respond by the required date, the USCIS can (1) deny the petition as abandoned, (2) deny the petition based on the available record, or (3) deny the petition for both reasons. A new H-1B petition can be filed, with new H-1B fees, if the H-1B employer withdraws the original petition or it is denied due to abandonment. However, the facts and circumstances surrounding the original petition will otherwise be considered material to the new H-1B petition.
Required Initial Evidence
The information and documentation requested in each H-1B RFE is based on the specific evidentiary deficiencies of the petition submitted. Frequently, the H-1B employer will receive an RFE based on their failure to include or establish the initial evidence required by the USCIS for H-1B approval. The initial evidence an H-1B petition should contain must prove the following to the USCIS:
- A Labor Condition Application has been filed and certified by the Department of Labor.
- The position offered to the foreign national is a specialty occupation.
- The foreign national has the degree required for the position.
- The foreign national holds any licenses or permits required for the occupation in the state in which the occupation will be performed.
- The terms of the H-1B job, including copies of any contracts or summaries of any oral agreements between the H-1B employer and foreign national.
The USCIS may desire additional information regarding the foreign national and/or the H 1B employer, including background and financial information about the employer, the foreign national’s current immigration status, and information about any H-1B dependents. The USCIS will also issue an RFE if fraud or other illegalities are suspected.
H-1B Visas For IT Consultants
H-1B Visas For IT Consultants
The H-1B specialty occupation of IT Consultant is one that can present unique problems for H 1B employers, as H-1B employees typically work extensively at client sites that may not be listed in the certified Labor Condition Application (LCA). Generally, a new LCA must be filed with, and certified by, the Department of Labor (DOL) prior to making any material changes in the terms of an H-1B worker’s employment (i.e., changes in work location). However, a close examination of the H-1B job, especially in the case of H-1B consultants, is recommended when determining the steps required for maintaining H-1B visa and LCA compliance.
Roving Employees And H-1B Employer Responsibilities
The H-1B employer (the H-1B sponsoring company) has specific obligations with regards to roving H-1B employees, such as IT Consultants. Namely, the employer must retain control over the roving H-1B employee, ensure and document that the H 1B employee is maintaining lawful H-1B visa status and ensure the H-1B employee has actual work to perform (the work cannot be speculative).
Employers As Agents And Speculative Work Assignments
The H-1B employer must be able to demonstrate they are the actual employer and not merely acting as an agent for the H-1B worker. Typically, a copy of the contract between the H 1B employer and their client, as well as copies of any contracts between the H-1B employer and H 1B worker, can provide sufficient evidence of control.
In addition, the H-1B employer must prove the H-1B employee has actual, not speculative, work assignments at client sites by providing an itinerary of the locations at which the H-1B employee will be working and a description of the work to be performed. At no time can the H-1B employee be benched due to lack of work and, thus, the H-1B employer is responsible for paying the H-1B employee the required wage, as stated in the LCA, even if no work is available.
LCA Compliance Requirements
When determining whether a new LCA is required, the H-1B employer must first establish whether the temporary work location qualifies as a new “worksite” or as a “non-worksite” pursuant to DOL regulations. The DOL considers the following categories to be “non-worksites” and, therefore, does not require the filing of a new LCA if:
- The occupation is “peripatetic” or one that, by its nature, requires frequent travel to client sites or other locations, and the H-1B employee does not spend more than 5 consecutive workdays on any one trip;
- The H-1B employee occasionally travels to alternate worksites, but works substantially at the permanent work location specified in the LCA. This type of travel can be recurring, but the H-1B employee cannot spend more than 10 consecutive workdays on any one trip; or
- The temporary transfer to a different work location is for employee development activities, such as conferences, trainings, seminars or meetings. However, this category does not include H-1B employees who provide trainings or seminars at alternate work locations on a regular basis.
If the H-1B employee’s temporary placement at an alternate worksite does not fall into any of the “non-worksite” categories above, the H-1B employer may still be excused from filing a new LCA if the transfer qualifies as a short-term placement.
An H-1B employer may place an H-1B employee on one or more short-term work assignments at locations not specified in the LCA. The short-term work assignments, collectively, cannot exceed a total of 30 days in a one year period (either the calendar year or employer’s fiscal year) and the following conditions must be met:
- There is not a strike, lockout or labor dispute in the same occupation at the temporary work location;
- The employer continues to pay the H-1B employee the required wage, which is the greater of the H-1B prevailing wage at the permanent work location or the actual wage paid by the employer to similarly situated workers; and
- The employer must pay for the H-1B employee’s actual costs of travel, lodging, meals and incidental expenses for weekdays and weekends.
Moreover, an H-1B employee may work at locations not specified on the LCA for up to 60 days, collectively, in a one year period if:
- The H-1B employee is maintaining a permanent office or work station at the work location indicated in the LCA;
- The H-1B employee spends a substantial amount of time at the permanent work location during the one year period; and
- The H-1B employee’s a primary residence is in the area of the permanent work location (i.e., personal mailing address, bank accounts, driver’s license, residence of H-1B dependents).
Amended H-1B Petition And New LCA
If an H-1B employee’s short-term work assignment is going to exceed a total of 30/60 days in the one year period, the H-1B employer must file an amended H-1B petition with a new LCA prior to the exhaustion of the 30/60 day limit. Likewise, if the H-1B employee’s temporary work assignment does not fall under one of the exceptions described above, the H-1B employer must file an H-1B amendment including a new LCA.
H-1B Visas For Health Care Professions
H-1B Visas For Health Care Professions
Historically, there has been some confusion related to the minimum qualifications for entry into particular health care occupations and which health care occupations qualify as specialty occupations. Though use of the U.S. Bureau of Labor Statistics’ Occupational Outlook Handbook is encouraged, the United States Citizenship and Immigration Services (USCIS) has clarified that adjudicators must also consult other authoritative sources, such as state licensing boards, when determining whether a proposed H-1B job is in a specialty occupation. Certain health care professions, such as registered nurse, may not qualify as specialty occupations if they do not minimally require the completion of a Bachelor’s degree or higher. Those health care professions that are considered specialty occupations, and typically require a license, will be adjudicated by the USCIS according to the H-1B procedures discussed below.
H-1B Employees With A License
Most health care occupations require a license, restricted or unrestricted, to practice in the profession. If the H-1B employee possesses the appropriate license required in the state of employment, the USCIS adjudicator should not “look beyond the license” when evaluating the H-1B employee’s qualifications for the position. In other words, an H-1B employee is considered to be automatically qualified for the specialty occupation if they have received the required state license for the profession. It is important to note, however, that the H-1B employee must be admissible in all other respects to be granted H-1B visa status.
If an H-1B employee has an unrestricted license to practice in the health care profession, the renewal period on the license should not be considered by the USCIS adjudicator when determining the period of H-1B approval. The USCIS adjudicator should approve the H-1B petition for the full period requested, up to a maximum of three years.
If an H-1B employee has a restricted license, the validity of the license is taken into consideration by the USCIS adjudicator when granting H-1B approval or H-1B renewal. The USCIS adjudicator should only grant H-1B status for as long as the H-1B employee’s license is valid or one year, whichever is longer.
H-1B Employees Without A License
In certain situations, an H 1B employee’s licensure is contingent upon having an approved H-1B petition and obtaining H-1B approval is contingent upon having received the requisite license. To alleviate this “catch-22,” the USCIS will grant temporary H-1B approval for a one year period. This provides the H-1B employee ample time to obtain the license required for the profession. The H-1B employee, however, is not permitted to work in the occupation without the license and H-1B extensions will be denied if the necessary license is not obtained. Further, H-1B employees that are licensed in a different state are treated as not having a license and can receive temporary H-1B approval to facilitate licensure in the appropriate state.
H-1B Visa, An Overview
H-1B Visa, An Overview
The H-1B is a nonimmigrant visa that allows foreign nationals to work in a specialty occupation for up to six years. Under certain circumstances an H-1B visa may be extended beyond six years, but foreign nationals are customarily required to live outside of the United States for one year to regain H-1B eligibility. To qualify for an H-1B, a foreign national must meet the educational requirements for, and be employed in, a specialty occupation by a United States employer.
Specialty occupations are statutorily defined as those that require theoretical and practical application of a body of highly specialized knowledge and the attainment of a Bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. Accordingly, an H-1B worker must possess at least a Bachelor’s degree, or the equivalent education and work experience, and be employed in an occupation that requires a Bachelor’s or higher degree.
Employers have specific obligations related to the employment of H-1B workers, many of which the employer consents to through the mandatory filing of a Labor Condition Application (Form ETA 9035) with the U.S. Department of Labor. Among other commitments assumed in the Labor Condition Application, the employer agrees to:
- Pay the H-1B employee the required wage, calculated as the greater of the actual wage or the prevailing wage, for the full period of authorized employment;
- Offer the H-1B employee benefits on the same terms as offered to U.S. employees;
- Ensure the working conditions of U.S. employees will not be adversely affected; and
- Provide the H-1B employee the same working conditions as U.S. employees.
The obligation to pay an H-1B worker their full, required wage only ceases if the employee’s H 1B status expires or the employee is terminated. The Employer remains obligated to pay the required wage if the employee is placed in a non-productive status by the employer (i.e., furlough, benching or temporary layoff). If an H-1B worker is terminated prior to the expiration of their H-1B status, the employer is required to provide the employee transportation to their last residence abroad.
U.S. Employers can petition for H-1B status on behalf of eligible foreign nationals. If the foreign national is in the U.S. in H-1B visa status, a new employer my file an H-1B transfer. The FN may begin working for the new employer while the H-1B petition is pending under the H-1B portability rule. If the foreign national is in the United States in another status, they may be eligible to change status without leaving the country. In this case they must wait for approval prior to joining the employer.
The United States Citizenship and Immigration Services (USCIS) requires petitions for H-1B status to minimally include:
- Form I-129, Petition for a Nonimmigrant Worker and applicable H-1B supplements;
- A signed, certified Labor Condition Application (Form ETA 9035);
- Evidence and/or documentation supporting the assertions made in the petition, including evidence of the foreign national’s education, the terms of employment and how the position offered qualifies as a specialty occupation; and
- The required government filing fee, ranging from $320 to $2,320.
The processing times for H-1B petitions vary, but petitions are usually adjudicated in three to six months. To expedite the process, an additional premium processing fee of $1,000 can be paid to guarantee adjudication within 15 calendar days. Once the employer receives an approval notice, the foreign national may apply for a visa at a U.S. consulate abroad.
Numerical Limitation (H-1B Cap)
The number of H-1B visas available each fiscal year is capped at 65,000, with an additional 20,000 visas available for foreign nationals with a Master’s degree or higher from a U.S. institution. Foreign nationals working in the H-1B status for institutions of higher learning, affiliated research organizations, non-profit research organizations and governmental research organizations are exempt from the annual cap. The USCIS begins accepting petitions for H-1B visas each year on April 1st and continues to accept petitions until the fiscal year cap has been exhausted. In the event more petitions are received on the first filing day than available H-1B visas, the USCIS conducts a lottery to determine which petitions will be processed.
Labor Certification (PERM)
Foreign Degree Equivalency rules in Labor Certification Application (PERM)
Foreign Degree Equivalency rules in Labor Certification Application (PERM)
In addition to proving no qualified U.S. workers are available through the PERM process, a sponsoring employer must show the foreign national beneficiary meets the minimum education and experience requirements for the position. However, proving the foreign national meets the minimum education requirement can be difficult if the foreign national’s education was completed abroad. The United States Citizenship and Immigration Services (USCIS) does not consider all foreign degrees to be the equivalent of U.S. degrees. The AACRAO Electronic Database for Global Education (EDGE) is an online degree equivalency database used by USCIS when evaluating foreign educational credentials. Each petition is examined on a case-by-case basis to determine if the level of education completed by the foreign national is the U.S. equivalent of the employer’s minimum requirements for the position. The most common method for establishing a foreign degree equivalency is through a credential evaluation.
Foreign Bachelor’s Degree Issues
Typically, 4 years of progressive post-secondary education in the same or a related field, culminating in a single source Bachelor’s degree, will be considered the equivalent of a U.S. Bachelor’s degree. However, in certain cases even a 4 year foreign Bachelor’s degree is not the equivalent of a U.S. Bachelor’s degree. Moreover, some foreign Bachelor’s degrees only require three years of study which creates an equivalency problem. The completion of only a 3 year Bachelor’s degree precludes a foreign national from qualifying for the second employment-based preference category (EB-2).
3 Year Bachelor’s Degree + 1 Year Post-Graduate Diploma
Even if a foreign national completes additional education beyond the 3 year Bachelor’s degree, it is not the equivalent of a U.S. Bachelor’s degree unless the education is obtained from a single source. In other words, for EB-2 or EB-3 professional category purposes, neither education and experience nor equivalent education are acceptable alternatives. Accordingly, a 3 year Bachelor’s degree plus a 1 year post-graduate diploma are only considered equivalent to a U.S. Bachelor’s degree if the post-graduate diploma was obtained from the same institution of higher education and is progressive education in the same or a related field.
Two Independent 3 Year Bachelor’s Degrees
Similarly, two independent 3 year Bachelor’s degrees may not be considered the equivalent of a U.S. Bachelor’s degree. Commonly, to qualify as a single source Bachelor’s degree, the independent degrees must have been completed at the same institution of higher education in related fields.
Foreign Master’s Degree Issues
To qualify for the EB-2 category, a position must minimally require the equivalent of a U.S. Master’s degree, or a Bachelor’s degree plus 5 years of progressive experience. Generally, to hold the equivalent of a U.S. Master’s degree, a foreign national must have completed a total of 6 years of combined undergraduate and post-graduate education, in the same or a related field, culminating in the award of a Master’s degree. The USCIS will examine the foreign national’s transcripts and dates of attendance to ensure they are consistent with 6 years of education. The combined 6 years of education can be attained through various degree scenarios including, but not limited to:
- 4 year Bachelor’s degree plus a 2 year Master’s degree;
- 3 year Bachelor’s degree plus a 3 year Master’s degree; or
- 3 year Bachelor’s degree plus a 1 year post-graduate diploma plus a 2 year Master’s degree.
Similarly, a foreign national may have completed 4 years of post-secondary education culminating in a single-source Bachelor’s degree and have five years of progressive experience in lieu of a Master’s degree.
Not all foreign Master’s degrees are equivalent to a U.S. Master’s degree. For example, some foreign institutions of higher education may grant a 5 year Master’s degree without an underlying Bachelor’s degree. This may qualify as the equivalent of a U.S. Master’s degree in limited situations where the employer can show the degree is in a field in which a 1 year Master’s degree program is common in the United States. Foreign Master’s degrees that are only equivalent to a U.S. Bachelor’s degree do not qualify for the EB-2 preference category unless they are combined with 5 years of progressive experience.
There are some exceptions to the “single-source” Bachelor’s degree rule. For instance, the USCIS has accepted a 3 year Bachelor’s degree and a 2 year Master’s degree plus five years of progressive experience as the equivalent of a U.S. Master’s degree for EB-2 purposes. Additionally, transfer credits from a community college do not violate the “single-source” Bachelor’s degree rule.
Priority Date Explained
Priority Date Explained
Though the I 140 Immigrant Petition cannot be filed until the labor certification is approved, the date the labor certification is filed with the Department of Labor (DOL) establishes a foreign national’s priority date. If no labor certification is required, the date the I-140 Immigrant Petition is filed becomes the foreign national’s priority date. The priority date is essentially a foreign national’s “place in line” for adjustment of status or consular immigrant visa processing. Once a foreign national’s priority date is current on the Visa Bulletin, the foreign national is eligible to complete the green card process.
Due to lengthy adjudication times, it is possible that a foreign national may change employers or positions prior to the completion of the green card process. A change in position and/or employer will generally require the filing of a new labor certification and I-140 Immigrant Petition if the foreign national does not intend to return to the previous employer/position. Further, if a foreign national in the EB-3 category is promoted to an EB-2 position, they would most likely desire to file a new labor certification and I-140 Immigrant Petition to take advantage of the quicker processing times in the EB-2 category.
Fortunately, if a foreign national’s original I-140 Immigrant Petition has been approved in the first, second or third employment-based preference category, their priority date can be transferred to a newly filed labor certification/I-140 Immigrant Petition in the first, second or third employment-based preference category. Additionally, the transferability of a priority date is not affected if the previous employer subsequently withdraws the original, approved I-140 petition. It is important to note that a priority date will only be transferable if the original I-140 Immigrant Petition has been approved.
To illustrate, a foreign national may have an approved labor certification from an EB-3 PERM filed in 2005 and an approved I-140 Immigrant Petition. The foreign national is then promoted to an EB 2 position and an EB-2 PERM is filed in 2009. Due to the fact that the original I-140 Immigrant Petition has been approved, the foreign national is allowed to transfer their 2005 priority date to the EB-2 PERM filed in 2009. It is incumbent upon the petitioning party, however, to notify the USCIS of the earlier priority date and request the earlier priority date be transferred to the new petition.
Labor Certification Recruitment Process Under PERM
Labor Certification Recruitment Process Under PERM
The PERM labor certification process is used to test the U.S. labor market for potentially qualified U.S. workers to fill a foreign national’s proposed permanent position. As described below, the PERM regulations provide employers with very particular instructions regarding the recruitment of potentially qualified U.S. workers. Employers seeking to sponsor college or university teachers, live-in household domestic service workers or “Schedule A” employees, such as physical therapists or nurses, are subject to unique requirements which are not specifically covered below.
As part of the recruitment process, the sponsoring employer is required to take certain mandatory steps to advertise the foreign national’s position. The mandatory recruitment steps include a State Workforce Agency (SWA) job order and Sunday newspaper advertisements. Specifically, the employer must post a job order (position advertisement) with the SWA serving the area of intended employment for a minimum of 30 days. Additionally, an advertisement must appear in two editions of the Sunday newspaper of general circulation in the area of intended employment. The newspaper advertisements must include:
- The legal name of the employer;
- Directions asking applicants to send their resumes to the employer; and
- A description of the job opportunity, including the geographic area of employment.
The newspaper advertisements cannot contain a wage lower than the prevailing wage for the position, any job requirements or duties not listed in the ETA 9089 application, or terms and conditions of employment that are less favorable than those offered to the foreign national.
If the position is one which would normally be advertised in a professional journal, the employer may post an advertisement in the appropriate professional journal in lieu of one Sunday newspaper advertisement.
Further, notice of the employer’s intent to file an application for labor certification must be provided to the bargaining representative. If no bargaining representative for the occupation exists, a general notice must be posted. The notice should be clearly posted in a conspicuous location for 10 consecutive business days and contain the following information:
- State that “notice is being provided as a result of the filing of an application for permanent alien labor certification for the relevant job opportunity”;
- State that “any person may provide documentary evidence bearing on the application to the Certifying Officer of the Department of Labor”;
- The address of the appropriate Certifying Officer; and
- State the rate of pay for the position, which must be at least the prevailing wage for the position as determined by the SWA.
Notice is to be provided at least 30, but no more than 180 days before the filing of the application for permanent labor certification. If the employer normally uses in-house media (electronic or print) to post jobs, the notice has to be published in the in-house media for 10 consecutive business days as well.
Employers are required to complete three additional recruitment steps beyond the mandatory recruitment. The employer can choose from the following additional recruitment options:
- Job fairs;
- Employer’s website;
- Job search website;
- On-campus recruiting;
- Trade or professional organizations;
- Private employment firms;
- Employee referral program with incentives;
- Campus placement offices;
- Local and ethnic newspapers; or
- Radio or television.
There are no guidelines from the DOL regarding the required duration for the additional recruitment steps. Employers are left to their best judgment as to what qualifies, in good faith, as a sufficient period of time to recruit potentially qualified U.S. workers.
The PERM regulations contain obligatory waiting periods which are intended to allow U.S. workers time to apply for the advertised position. Notwithstanding the required advertising and posting periods, the employer must wait an additional 30 days after the last recruitment step has taken place to file the ETA 9089 application. The only exception to this rule is that one additional recruitment step may take place within the 30 days prior to filing. However, none of the recruitment steps may have taken place more than 180 days prior to the filing of the ETA 9089.
At the close of recruitment and prior to filing the ETA 9089 application, the employer must draft a recruitment report. The recruitment report, which is signed by the employer, details the recruitment steps undertaken, the results achieved, the number of hires and the number of U.S. workers rejected, categorized by the lawful job related reasons for such rejections. The regulations mandate that copies of the ETA 9089 and all supporting documentation be retained by the employer for 5 years from the date of filing.
Avoiding in Labor Certification Application Schedule A Occupations
Avoiding in Labor Certification Application Schedule A Occupations
There are certain occupations which the Department of Labor (DOL) has determined lack an adequate number of able, willing and qualified U.S. workers. These high-demand occupations are designated as “Schedule A” occupations and allow employers to utilize a modified labor certification process that does not require the traditional PERM recruitment steps. Employers may use this alternate process because the DOL trusts that the employment of foreign nationals in such positions will not adversely affect the employment or working conditions of U.S. workers.
Schedule A Occupations: Group I and Group II
The Schedule A occupations are categorized by groups: Group I and Group II. The Group I occupations include physical therapists and professional nurses, and the Group II occupations are those in science, art and the performing arts.
To be employed in a Group I occupation, the foreign national must be eligible to sit for or already have passed the requisite state licensing exam in the state where they intend to practice.
The PERM regulations broadly define occupations in science or art as “any field of knowledge and/or skill with respect to which colleges and universities commonly offer specialized courses leading to a degree in the knowledge and/or skill.” Foreign nationals working in the sciences or art (including college and university teachers), or performing arts are eligible for Group II occupations if they are of exceptional ability, have been practicing during the year prior to the labor certification application and intend to continue to practice in the U.S. Moreover, the employer must demonstrate that the foreign national’s work during the past year required, and will continue to require, exceptional ability. Notably, to qualify for a Group II occupation, a foreign national need not have attended a college or university.
Schedule A Documentation
To file a Schedule A labor certification for a Group I or Group II occupation, the employer must submit the following documentation to the reviewing Immigration Officer:
- An ETA 9089 application for permanent labor certification, including a prevailing wage determination from the State Workforce Agency (SWA) in the area of intended employment; and
- A copy of the notice provided to the bargaining representative for the occupation or, if no bargaining representative exists, a copy of the notice posted for 10 consecutive business days apprising workers in the occupation of the employer’s intent to file an application for labor certification.
Group I Documentation
In addition to the basic Schedule A documentation, employers submitting an application for Group I labor certification need to include documentation of the following:
- For physical therapists, a letter or statement signed by an authorized physical therapy licensing official in the state of intended employment, stating the foreign national is qualified to take the state’s written licensing examination for physical therapists; or
- For professional nurses, documentation that the foreign national has received a certificate from the Commission on Graduates of Foreign Nursing Schools; and documentation showing they have a permanent, unrestricted license to practice in the state of intended employment or they have passed the National Council Licensure Examination for Registered Nurses.
Group II Documentation
Science Or Art Occupations
Employers filing a labor certification for occupations in science or art must demonstrate to the reviewing Immigration Officer the widespread acclaim and international recognition accorded the foreign national by recognized experts in the field, including evidence from at least two of the following sources:
- Documentation of internationally recognized prizes or awards for excellence in the field;
- Documentation of membership in international associations which require outstanding achievement, as judged by recognized international experts; Published material in professional publications about the foreign national or the foreign national’s work (including the title, date, and author of such published material);
- Evidence of participation on a panel, or individually, as a judge of the work of others in the same or a closely-related specialization; Evidence of original scientific or scholarly research contributions of major significance in the field;
- Evidence of published scientific or scholarly articles in the field, in international professional journals or professional journals with international circulation; or
- Evidence of the display of the foreign national’s work at artistic exhibitions in more than one country.
Performing Arts Occupations
For occupations in the performing arts, the employer must provide evidence attesting to the current widespread acclaim and international recognition accorded to the foreign national through one or more of the following:
- Documentation of the receipt of internationally recognized prizes or awards for excellence;
- Published material by or about the foreign national, such as critical reviews or articles in major newspapers, periodicals, and/or trade journals (including the title, date, and author of such material);
- Documentary evidence of earnings commensurate with the claimed level of ability;
- Playbills and star billings;
- Documentation of the outstanding reputation of theaters, concert halls, night clubs, and other establishments in which the foreign national has appeared or is scheduled to appear; and/or
- Documentation of the outstanding reputation of theaters or repertory companies, ballet troupes, orchestras, or other organizations in which or with which the foreign national has performed during the past year in a leading or starring capacity.
The ETA 9089 application for permanent labor certification and supporting documentation are submitted to one of the Department of Homeland Security’s Immigration Officers for review. The Immigration Officer’s determination is “conclusive and final” and, consequently, cannot be appealed.
Special Handling Rules for College and University Teachers In Labor Certifications Applications
Special Handling Rules for College and University Teachers In Labor Certifications Applications
College and university teachers are eligible for a modified labor certification process called “Special Handling”. The Special Handling recruitment process is an abridged version of the traditional labor certification recruitment process. The employer is not required to show there were no minimally qualified U.S. workers available for the position, but rather they must prove that the foreign national was the most qualified candidate. The employer can accomplish this by showing the Department of Labor (DOL) that the foreign national was selected using a “competitive recruitment and selection process” as discussed below.
Special Handling Qualifications
To be eligible as a college or university teacher for Special Handling, the foreign national must have classroom teaching or instruction duties at an accredited educational institution that offers a two-year associates degree or higher. The DOL has not specified a minimum number of teaching hours required to qualify for Special Handling, but the position must be permanent and full-time. It is important to note that faculty members who do not teach, such as researchers or librarians, are not eligible for Special Handling.
Special Handling Documentation
In addition to the ETA 9089 application, the employer must submit documentation of the “competitive recruitment and selection process” including a statement signed by the employer describing the recruitment process and the following:
- The total number of applicants;
- The lawful job-related reasons why the foreign national is more qualified than every U.S. candidate;
- A final report of the faculty, student or administrative body making the recommendation or selection of the foreign national;
- A copy of at least one advertisement for the job opportunity placed in a national professional journal stating the job title, duties and requirements;
- Evidence of any other recruitment sources utilized; and
- A written statement attesting to the degree of the foreign national’s educational or professional qualifications and academic achievements.
The employer must also notify the appropriate bargaining representative or, if no bargaining representative for the occupation exists, a notice must be posted for 10 consecutive business days. The notice is meant to apprise workers in the occupation of the employer’s intention to file a labor certification application. The wage offered for the position on the posting notice and, if included in any other recruitment, must be equal to or greater than the prevailing wage for the occupation in the geographic area of intended employment.
Special Handling Timelines
To make use of Special Handling, the ETA 9089 application for labor certification must be filed within 18 months of the job offer, not the date of hire. Moreover, the employer must wait at least 30 days, but no more than 180 days after the final day of the posting notice to file the ETA 9089 application.
TN/TD NAFTA Professionals Overview
TN/TD NAFTA Professionals Overview
The North American Free Trade Agreement (NAFTA) is a treaty between the United States, Mexico and Canada that aims to foster and encourage trade. Among other benefits, NAFTA allows Mexican and Canadian citizens to work in particular professional occupations in the United States. Most of the qualifying professions listed in NAFTA Appendix 1603.D.1 minimally require the equivalent of a U.S. Bachelor’s degree. Citizens of Mexico and Canada are eligible to work in TN nonimmigrant status in the U.S. if they meet the criteria set forth under NAFTA.
To work in TN status in the United States, a foreign national must satisfy the following fundamental requirements:
- Be a citizen of Mexico or Canada (permanent residents do not qualify);
- Work in a professional occupation designated under NAFTA; and
- Possess the professional and educational qualifications for the position as defined by NAFTA.
Canadian citizens are visa exempt and, therefore, can apply for TN status without a visa. Mexican citizens, however, must obtain a visa prior to applying for TN status at a U.S. port of entry.
Employment Letter Or Contract
A critical document that must accompany a foreign national when applying for TN classification is the letter of employment or contract from the U.S. employer. The employment letter or contract should be presented at the U.S. port of entry and minimally include information regarding:
- The nature of the foreign national’s activity in the U.S.;
- The purpose of the foreign national’s entry;
- The foreign national’s length of employment/anticipated length of stay;
- The foreign national’s professional qualifications and educational credentials for the position;
- An explanation of how the foreign national will be compensated; and
- Proof of licensure if a license or permit is required for the position.
The employment letter or contract should clearly identify the NAFTA occupation in which the foreign national will work. The qualifying list of NAFTA professions consists of a variety of occupations, including but not limited to accountant, computer systems analyst, industrial designer, librarian, management consultant, scientific technician, social worker, teacher, plant breeder, physicist, meteorologist, dentist, physician and veterinarian.
TN status is a nonimmigrant classification that is initially granted for a maximum period of 3 years. Individuals in TN status are eligible for an indefinite number of renewals provided they continue to meet the requirements for the classification. Notably, TN status will not be granted for a period that exceeds the validity of the foreign national’s passport or the length of employment specified in the employment letter or contract. TN professionals must work for a U.S. employer and cannot be self-employed. Part-time employment, though, is permissible in TN status.
Dependents of foreign nationals in TN status are eligible for a derivative classification called TD status. Unmarried, minor children (under the age of 21) and spouses of TN professionals may hold TD status even if they are not citizens of Mexico or Canada. Spouses and children in TD status are not eligible for work authorization, but are allowed to study while in the United States. Dependents will be admitted to the U.S. for the same duration as the primary TN applicant.