For more than a decade, our law firm has represented corporations, hospital systems, State governmental agencies and businesses with regards to their H-1B professional work petitions/visas. It is important when filing an H-1B petition to review background details including the proposed job duties and title, salary and prevailing wage issues, timing of start date, evidence of the employer-employee relationship, beneficiary’s educational details/degree award dates/F-1 OPT validity periods, previous visa denials and potential consular processing issues.
For H-1B cases involving third party job-site placements, it is also crucial to examine the existence and wording of end-client and/or vendor MSA/SOW/PO contracts as well as evidence of the extent of the employer’s control over the proposed H-1B Beneficiary’s work. This will help determine whether the petition will be able to overcome “Right to Control”/Neufeld Memo issues and any potential Requests for Evidence (RFEs) issued by USCIS.
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- 1. The H-1B is a temporary nonimmigrant visa which grants holder up to six years within the U.S. An individual must leave the country after six total years in H or L status. There are exceptions including those individuals who have a labor certification pending for more than 365 days, I-140 approved, or those who change their status to H-4 (they may remain for as long as their spouse is on H-1B – spouse is also subject to the 6 year maximum). Periods outside of the US may be reclaimed in Requests for an Extension.
- Applicant must have experience or education (four year baccalaureate degree or equivalent) in a specialty occupation.
- A U.S. sponsor is required to petition for an H-1B worker. The sponsor must comply with prevailing wage levels, agree not to displace American workers, agree not to replace a laid-off worker with an H-1B for a certain period of time, and agree not to employ the H-1B during a strike or lock-out, among other attestations.
- The spouse or dependent child of an H-1B worker may accompany or follow to join the principle visa holder. These H-4 visa holders may attend school but cannot work (Unless they qualify for and obtain an EAD based on the spouse’s I-140 approval).
- An H-1B visa holder may change their status to any other nonimmigrant status they are eligible for.
- An H-1B visa holder may transfer employers easily under the H-1B Portability Act. They may begin working for the new employer as soon as the new H-1B Transfer petition is submitted to USCIS.
- An H-1B visa holder may petition for Permanent Residency (a green card) because of the dual-intent nature of the visa. An H-1B may enter and exit the U.S. at any time, even after a Permanent Residency petition has been filed.
- Roughly 85,000 new visas are available per fiscal year. These visas are normally used up in the same week the cap opens up (April 1). If an individual qualifies for an E-3 or TN visa, it may be a better decision to enter on those visas and later, if necessary, change status to H-1B.
- An employee may hold more than one concurrent H-1B visas for two different employers (including part time employment).
A U.S. sponsor with a U.S. Tax ID number may petition for an H-1B professional worker if the sponsor has available a specialty position (See selection on specialty occupations below) as defined under INA §214(i)(1), 8 U.S.C. §1184(i)(1), 8 C.F.R. §214.2(h)(4)(ii), requiring the:
- Theoretical and practical application of a body of highly specialized knowledge and
- 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.
This degree requirement, or its equivalent, must be common to the industry in parallel positions among similar organizations. The sponsor must agree to and abide by H-1B and LCA attestations regarding the employment of an H-1B Non-Immigrant Worker, including, but not limited to:
- The employer must agree to pay the ‘prevailing wage’ – the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or the prevailing wage level for the occupational classification in the area of employment. (Effective March 8, 2005, the employer is required to pay 100 percent of the prevailing wage.)
- Providing working conditions for the applicant that will not adversely affect other workers similarly employed.
- Attesting that there is no strike or lockout in occupational classification at the place of employment.
- Attesting that it has provided notice of the filing to the bargaining representative (if any) of the employer’s employees in the occupational classification and area for which aliens are sought, or if there is no such bargaining representative, has provided notice of filing in occupational classification through such methods as physical posting in conspicuous locations at the place of employment or electronic notification to employees in the occupational classification for which H-1B nonimmigrants are sought (See selection on public disclosure record below).
If an employer is H-1B dependent *, or has been found to be a willful violator ** of H-1B laws, it must also make further attestations. Employers subject to these attestations must also retain documentation of these additional conditions in the public access file. The following additional attestations need not be made by H-1B dependent or willful violator U.S. employers if the employee is exempt ***.
- That there will be no displacement of protected U.S. workers – defined as employees who are citizens, nationals, permanent residents, refugees, asylees, or immigrants otherwise authorized by the INA or by the Attorney General to be employed. The employer may not have displaced protected workers for a period from 90 days prior to filing the LCA to 90 days after filing the visa petition.
- Must have conducted prior recruitment.
* An H-1B dependent employer is defined as an employer who has 25 or less full-time equivalent employees and more than 7 H-1B employees, or 26-50 full-time equivalent employees and more than 12 H-1B employees, or at least 51 full-time equivalent employees and at least 15 percent H-1B employees.
** A willful violator is an employer who has been found to commit a willful failure or misrepresentation in LCA compliance in the previous five years. However, it is important to remember that even if an employer is a willful violator, it is not required to make the above attestations on an LCA for an exempt H-1B employee.
*** An exempt H-1B applicant is one who:
- Receives annual wages including cash bonuses and similar compensation of $60,000 or more and/or
- An individual who has attained a master’s degree or higher (or its equivalent) in a specialty related to the intended employment.
Sanctions against H-1B Sponsors Who Violate Laws
It is recommended that an Immigration Attorney be retained to prepare and file an H-1B petition because errors and oversights can subject an employer to fines/penalties, sanctions and other issues. In addition to the fines and penalties discussed below, willful violators may be randomly investigated by the USCIS for a period of five years.
- $1,000 fine and one-year prohibition from filing immigrant and nonimmigrant visa petitions for failure to meet strike or layoff attestation; substantial failure to meet working-condition attestation or displacement attestation, posting or recruitment attestations, or misrepresentation of material fact in the LCA;
- $5,000 fine and two-year prohibition from filing immigrant and nonimmigrant petitions for willful failure to meet any attestation, or willful misrepresentation of material fact in the LCA; and
- $35,000 fine and three-year prohibition for willful failure to meet an attestation condition, or willful misrepresentation of a material fact in an LCA, in the course of which failure or misrepresentation, a U.S. worker is displaced during the period commencing 90 days before filing the application and ending 90 days after filing the H-1B visa petition.
- $5,000 and prohibition from filing petitions for two years for retaliation against employees who are ‘whistle blowers’. The whistle blower provision covers employees, former employees, and applicants who disclose information to the employer or to “any other person” that the “employee reasonably believes evidences” is a violation of INA §212(n). Also protected by the whistle blower provision are employees, former employees, and applicants who cooperate or seek to cooperate in a proceeding or investigation concerning the employer’s compliance with INA §212(n). The employer violates the whistle blower provision by intimidating, threatening, restraining, coercing, blacklisting, discharging, or in any other manner discriminating against a whistle blower.
- The ACWIA allows an H-1B nonimmigrant whistle blower to continue to work in the U.S. following retaliation by the employer.
- $1,000 penalty for requiring an H-1B nonimmigrant to pay a penalty to the employer for leaving the job prior to a contracted date. Employer may also be required to return the amount paid to the H-1B nonimmigrant unless the amount is purely liquidated damages.
- Penalty for benching an H-1B. An employer is in violation of the LCA requirement at INA §212(n)(1)(A) for placing an H-1B nonimmigrant in unpaid nonproductive status due to a decision by the employer “based upon factors such as lack of work,” or due to the H-1B nonimmigrant’s lack of a permit or license. A violation will be found for failure to pay full-time wages to a full-time employee, failure to pay a part-time employee the part-time rate identified in the visa petition, failure to pay a new H-1B employee within 30 days of admission, or failure to pay a new H-1B nonimmigrant already present in the United States within 60 days of the date the nonimmigrant becomes eligible to work for the employer. The prohibition against unpaid nonproductive status does not apply to nonproductive time due to non-work related factors such as a voluntary request by the nonimmigrant for an absence like maternity leave or circumstances rendering the nonimmigrant unable to work. The prohibition against unpaid bench time also does not preclude a “school or other educational institution” from paying an annual salary over fewer than 12 months if it is an established practice and the beneficiary agrees to it.
- $1,000 penalty per violation and one year’s disbarment from filing H-1B visas, or $5,000 per willful violation and two years disbarment for an employer’s failure to offer a job to a qualified U.S. worker or misrepresenting the attestation as required by INA §212(n)(1)(G).
- If an H-1B nonimmigrant is dismissed before the end of the period of authorized stay, the employer is liable for the costs of return transportation to the beneficiary’s foreign residence. Any dismissal is covered, including one for cause. The exception is when the beneficiary voluntarily terminates employment. In addition, the employer is now required to withdraw the H-1B petition to ensure that it is no longer obligated to pay the required wage for the employee who has been terminated.
Temporary Nature Of Job
The H-1B position should be temporary in nature and cannot initially exceed three years in length. However, a subsequent H-1B extension of an additional time (again, not exceeding three years) may be requested for a total of six years, at which time the H-1B visa holder should exit the country for at least one year unless the individual has filed a labor certification which was approved or pending for more than 365 days. An exception also applies to an individual who has changed his or her status from H-1B to H-4 may remain in H-4 status as long as their spouse has a valid H-1B. Finally, the beneficiary of an H-1B petition may recapture all periods of time he or she has spent outside the U.S. For example, if an individual spent eight months out of the total six years outside of the U.S., he or she may petition for and recapture the eight months. There is no limitation on individuals remain in the U.S. for six months a year or less, or those who commute to the U.S. to work.
Public Disclosure Record
The H-1B employer must allow public examination of a copy of the H-1B candidate’s LCA and other necessary supporting documentation regarding the H-1B worker and other similarly situated employees. Specifically, the employer must create and maintain a public access file to document compliance in each H-1B case. This public disclosure record must include:
- Copy of the LCA (with employer’s original signature and cover pages);
- Documentation of the wage to be paid to the H-1B employee (offer letter or other);
- Explanation of the system used to set the actual wage;
- Copy of prevailing wage determination from SWA or description of survey or other source used;
- Copy of notice to union (if applicable) or Notice of Filing postings; and
- Summary of benefits plan offered to the H-1B employee showing that it is the same as that offered to similarly employed U.S. workers (and H-1B employee’s elections, if any).
- Document to be added to the file on or before H-1B employee’s first day of work:
- Copy of certified LCA with signature of H-1B employee as proof he or she received copy.
- Documents that may need to be added in the future:
- Documentation regarding any adjustment to the wage (e.g., annual raise or cost of living increase); and
- Where the employing entity undergoes a non-disruptive change in its legal structure, and does not choose to file amended petitions for each H-1B worker it acquires, a sworn statement from the new employer that it accepts all obligations under the LCAs filed by the predecessor employer and a list of the affected LCAs.
- Where the employer uses the definition of a single employer to determine H-1B dependency, a list of entities included.
- Where an employer is H-1B dependent or a willful violator, evidence of recruitment of U.S. workers.
- Where an employer is H-1B dependent or a willful violator, but indicates that the LCA is for “exempt” nonimmigrants, a list of the “exempt” employees. (See below for a discussion of exempt H-1Bs.)
The H-1B applicant must be coming to America to fill a ‘specialty occupation’, that is, an occupation that requires theoretical and practical application of a body of knowledge in professional fields and at least the attainment of a bachelor’s degree, or its equivalent, as a minimum for entry into the occupation in the United States.
“Specialty occupation” is defined as “an occupation that requires (a) theoretical and practical application of a body of highly specialized knowledge, and (b) 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.” Under USCIS regulations, one or more of the following criteria must be met before a job can be considered a specialty occupation:
1. A bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position;
2. The degree requirement is common to the industry or, in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree;
3. The employer normally requires a degree or its equivalent for the position; or
4. The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree. A U.S. bachelor’s or higher degree (or its foreign equivalent) should be held in the specific specialty or a related field. Furthermore, a general arts degree or a generic business administration degree without further specialization or experience may be heavily scrutinized by the USCIS.
Qualifying for the Specialty Occupation
The visa applicant should have the following:
- Full state licensure, if required for practice in the specialty field. For example: many pharmacists and all nurses are required to have a state license to practice, however, where the only bar to obtaining a license is the fact that the beneficiary lacks a social security card, USCIS should grant the petition for a one-year period. Finally, it must be understood that a license requirement does not necessarily prove that the position in question is a specialty occupation;
- Completion of a U.S. bachelor’s or higher degree (or its foreign equivalent) in the specific specialty or a related field; or
- Education, training, or experience in the specialty occupation equivalent to the completion of such degree.
College or University Degree Requirement
The type and level of degree required for the specialty occupation is dependent on the particular specialty occupation. Some positions may require an advanced degree as a minimum entry requirement. For other occupations, such as entry level Computer Systems Analysts, a bachelor’s degree will suffice. If the applicant’s education has not been completed in the States, a foreign degree evaluation should be completed to determine whether the foreign degree is equivalent to a U.S. degree. These evaluations should be completed by accredited agencies and can be found quite easily on the internet.
Often times, there may be an assortment of related disciplines acceptable for entry into a given specialty. For example, a Computer Systems Analyst position may require a degree in computer science, engineering, math, or a related field.
Work Experience in Lieu of Education
An applicant may substitute prior work experience in a specialty occupation for part of, or in some instances, the entirety of the requisite education. However, work experience alone will not wholly substitute for a Master’s degree or higher. This experience must be in “progressively responsible positions relating to the specialty.” Evidence of qualifying experience, according to the House committee, can include “letters from peers and special honors recognition, or authorship of textbooks.” An applicant can also evidence this work experience through an evaluation conducted by a college or accredited agency. USCIS may also determine equivalency through application of the “three-for-one” rule, by which three years of specialized training and/or work experience may be substituted for each year of college-level education that the beneficiary lacks.
Quota Exempt H-1B’s Only 85,000 foreign nationals per year are be issued visas or given status in H-1B classification: this includes the additional 20,000 H-1B’s set aside each year for holders of qualifying U.S. Masters or Advanced degrees. In addition, certain H-1B employees are exempt from the H-1B quota cap. The numerical limitations do not apply to:
- H-1B workers employed by institutions of higher education as defined by the Higher Education Act of 1965, or
- A related or affiliated nonprofit organization (a university affiliated teaching hospital, for example).
- A nonprofit organization primarily engaged in applied or basic research; or
- A governmental research organization.
The cap also does not apply to H-1B extensions of status with the same company, a petition for a second H-1B, transfers from one H-1B employer to another H-1B employer. The cap does apply, however, to an H-1B transfer applicant who was previously working in a quota exempt H-1B position (e.g. for a government research organization) and now wishes to transfer to a for-profit cap-subject organization.
A 2006 memo issued by the USCIS broadened H-1B Quota Exempt issuance to certain for profit H-1B employers, if the H-1B beneficiary is proposed to be placed “AT” an eligible exempt location and if the employment and the H-1B employer/Exempt Client relationship meets certain conditions. This type of exemption is useful for Beneficiaries who are proposed to be geographically placed at a quota exempt institution and supporting the exempt institutions “main mission” for a majority of their time, even if still technically working for a quota-subject (for-profit) petitioning employer; ex) Hospitalists, or perhaps Software Engineers working on E-Solutions for and at Hospitals, Government Research Organizations or Universities.
Travel (with prior visa) and H-1B Portability
The legacy INS Memorandum from Michael A. Pearson, Executive Assoc. Comm’r, Office of Field Operations (Jan. 29, 2001) gives details regarding when an H-1B holder who transferred to a new company is able to travel while awaiting the new H-1B adjudication. The letter states that an H-1B beneficiary is admissible at a port of entry even if he or she is no longer working for the original petitioner, provided that the following conditions are met:
- The applicant is otherwise admissible;
- The applicant, unless exempt under 8 CFR §212.1, §1212.1, is in possession of a valid, unexpired passport and visa (including a valid, unexpired visa endorsed with the name of the original petitioner);
- The applicant establishes to the satisfaction of the inspecting officer that he or she was previously admitted as an H-1B or otherwise accorded H-1B status. If a visa exempt applicant is not in possession of the previously issued Form I-94, Arrival/Departure Record, or a copy of the previously issued I-94, the applicant may present a copy of the Form I-797, Notice of Action, with the original petition’s validity dates; and,
- The applicant presents evidence that the new petition was filed timely with the Service Center, in the form of a dated filing receipt, Form I-797, or other credible evidence of timely filing. In order to be a timely filing, the petition must have been filed prior to the expiration of the H-1B’s previous period of admission. The burden of proof is on the applicant to show that he or she is admissible as an H-1B and eligible for visa portability provisions described in AC21.
Consular Processing For H-1B Visa Holders
Whether attempting to enter the U.S. with an approved H-1B in hand or exiting the U.S. and re-entering for a subsequent H-1B approval, an employee will have to visit a U.S. Consulate abroad. This is often a stressful scenario. A meeting should be arranged between the employer, employee and the attorney to discuss important issues and go over the procedure. Below is a list of documentation required by the U.S. Consulate in Chennai, India, one of the most rigorous Consulates in the world. No matter where you are getting stamped, it is important to gather as much documentation on this list as possible prior to attending your appointment.
For H-1B Visas
- Original notice of approval (I-797), the H-1B petition along with an attorney-authenticated copy of the petition, the LCA and other supporting documents;
- The originals of the applicant’s university degree certificate and mark sheets;
- Letter from petitioning employer confirming employer’s intent to hire the applicant (all end-client documents if applicable);
- Originals of the applicant’s work experience letters;
- Pay slips from current or most recent place of employment;
- Current telephone numbers of the personnel managers at the applicant’s present and past jobs;
- Provide written directions, utilizing common names and landmarks to the applicant’s present and past jobs;
- Photographs of the inside and outside of the applicant’s current or most recent place of work;
- Names and contact information of two co-workers from past jobs;
- A complete resume (bio-data) and cover letter describing current job duties in detail;
- Personal bank records for the last six months;
- U.S. company information: photographs of the inside and outside of the company’s offices, prospectus, brochures, and annual report;
- If the applicant is current working in the United States on an H-1B visa, also submit pay slips for the current calendar year and federal tax returns (IRS Form 1040 and W-2) for all years in which the applicant was employed in the United States; and
- A complete set of photocopies of the above listed documents.
For H-4 Visas
- Birth records of children;
- Marriage registration certificate;
- Original I-797 Notice of Approval;
- Copy of principal’s H-1B petition, LCA and supporting documents;
- Wedding invitation and wedding photos;
- All pages of the principal applicant’s passport (if not applying with principal applicant). If a copy of a passport is submitted, it should be a GOOD copy and the photo must be clearly identifiable;
- A letter from the H-1B company confirming the continued employment of the applicant’s spouse;
- Copy of the principal applicant’s work experience letters;
- Copy of the principal applicant’s offer of employment with the U.S. company; and
- If the principal applicant is currently working in the United States on a H-1B visa, then submit pay slips for the current calendar year and federal tax returns (IRS Form 1040 and W-2s) for all the years in which he or she has been employed in the United States on the H-1B visa.
Please see our blog at www.ashwinsharma.com for more information about the H-1B Visa