The H-1B Limitation on Stay
An individual alien is entitled to H status for only six years (in most situations). When hiring an alien already in H status, it is important to determine how much more time he has available. There are some exceptions.
CIS now offers “Premium Processing” for an optional, additional filing fee of $1,000. This guarantees review of a case within 15 days of filing. Prudent employers should carefully assess whether the circumstances of the case dictate that payment of the additional fee is warranted.
Background: Before October 1, 1991, the process of securing temporary visa status for foreign nationals who were offered professional jobs in the U.S. was relatively straightforward. The prospective employer would file an H-1B Petition with the Citizenship and Immigration Services (CIS). The Petition and supporting documentation would describe the job opportunity; state the minimum educational requirements for the position; and demonstrate the professional credentials of the alien applicant. Processing took about two or three weeks, and the alien's status would often be changed simultaneously to permit employment in the U.S. If the alien was overseas, he/she would be issued an H-1B visa at American Consulate within days. Neither the availability of U.S. workers or the effect on the labor market was an issue.
In order to respond to concerns from organized labor and other interests, Congress included in the Immigration Act of 1990 substantial changes to the H-1B category, effective October 1, 1991. The principal changes are as follows:
Specialty Occupations: H-1B status is limited to "specialty occupations". This is similar to the concept of "professional occupation" under prior law. The occupation must typically require the attainment of at least a Bachelors Degree in a particular field, or its equivalent. For those who are professional workers, this is not a meaningful change from prior practice.
No longer eligible are aliens of "distinguished merit and ability" (other than fashion models) who do not possess a degree. These aliens may have qualified for H-1B status under prior law if they were "prominent" in their field. Prominent artists, entertainers, or athletes may consider the new "O" and "P" visa categories. Examples of jobs which easily qualify as "specialty occupations" include the following: architects, engineers (civil, electrical, software, etc.), accountants, teachers, and scientists. Jobs in the business sector in such fields as marketing, management, or finance may qualify but such petitions will be carefully reviewed on a case-by-case basis to determine whether a formal academic degree is generally an actual prerequisite for the position.
65,000 Limit Per Year: H-1B visas are now limited to an annual "cap" of 65,000 per fiscal year. An
additional 20,000 H-1B visas are available for applicants who possess at least a Masters Degree from a U.S. University (even if the job does not require a Masters Degree).
For Fiscal Year 2008 which began on October 1, 2007 and ends on September 30, 2008, the entire quota of 65,000 plus 20,000 numbers has already been exhausted. However, it is still possible to obtain H-1B status immediately in the following situations:
Extensions of H-1B status for aliens currently employed in H-1B status by the petitioner.
“New” employees who currently maintain H-1B status with another employer, OR who have previously been in H-1B status in the past six years and have not subsequently been absent from the U.S. for more than one year [note: if the prior H-1B employer was an exempt employer as described below, the new petition does require a number under the cap and can only be filed when H-1B visa numbers are available].
Exempt Petitioners: the following organizations are exempt from the “cap”; these employers may continue to obtain H-1B status for new employees who will be employed at (not by):
institutions of higher education (college level)
a nonprofit organization related to or affiliated with an institution of higher education
a nonprofit research organization or governmental research organization
(These exempt classes are often referred to informally as “educational H-1B” cases, though this label is somewhat misleading.)
Note carefully: this
does not exempt all nonprofit organizations; only those affiliated with an institution of higher education
Return Transportation Liability:
the law now provides that the employer is liable for the return transportation abroad of the alien if he/she is dismissed from employment prior to the expiration of his/her authorized stay. Under prior law, the employer was required only to notify CIS of the termination of employment.
This requirement is triggered only if the alien is dismissed from employment prior to the expiration of the authorized stay. The employer has no such responsibility for aliens who quit the job, work until the expiration of their authorized stay, or obtain LPR ("green card") status in the interim. "Abroad" means the alien's last place of foreign residence. This is to be a complaint-driven process. If the alien beneficiary believes the employer has failed to comply with this requirement, he/she may so notify the CIS Service Center which approved the H-1B Petition
Labor Condition Application: by far the most significant change is the imposition of a requirement for the filing of a Labor Condition Application (LCA) with the Regional Certifying Officer of the Department of Labor. The LCA must be filed and approved before an H-1B Petition can be filed with CIS. A detailed discussion of the LCA requirements is set forth below.
Filing the H-1B Petition:
The employer must then file an H-1B Petition (Form I-129) with the Regional CIS Service Center having jurisdiction over the geographic area where the alien will be employed. The Petition must be accompanied by a statement from the employer detailing the professional nature of the position offered, supporting documents which prove the alien's educational qualifications and employment history, and a copy of the LCA. Processing times may vary from a few weeks to a few months, depending on which CIS Service Center is involved, and current CIS workload issues.
Note: applicants who are presently in the U.S. must continue to maintain a valid visa status at least until the time the H-1B petition (Form I-129) is filed with the CIS Service Center. For example, an applicant in H-1B status with another employer must not terminate employment with his current employer until the new petition is filed. The filing of the Labor Condition Application with the Department of Labor is a preliminary procedure and it is not acceptable for the applicant to cease employment at this point in the process. Continued employment must be documented with pay stubs or other similar evidence.
Applicants who are deemed "out of status" or whose valid status expires before the H-1B petition is filed with CIS, must generally return to their home country, obtain an H-1B entry visa at an American Consulate, and renter the U.S. in H-1B status before commencing employment.
Portability of H-1B Status: the law now provides that certain aliens who are in, or were previously in, H-1B status, may commence employment with a new employer upon the filing of a new H-1B petition, without waiting for its approval. This can be a considerable advantage, but there are many nuances that must be considered. Please contact us for further information about portability.
If the alien is waiting overseas, the CIS will forward notice of approval of the Petition by cable to the designated U.S. Consulate overseas, where the alien will apply for his H-1B visa to enter the U.S. Notice of approval of the Petition (Form I-797) is also sent to the employer and to the attorney of record, if any. If the alien is already in the U.S. in a different nonimmigrant category, he may seek a change of status in the U.S. by checking the appropriate box on the Petition. Upon approval, he may commence employment. However, if the alien later travels abroad for any reason,
he must obtain an H-1B entry visa at a U.S. Consulate overseas before returning to the U.S. An alien currently employed in H-1B status with another employer may seek an extension of stay by checking the appropriate box on the Petition. He may commence employment with the new employer as soon as the new Petition is approved. In some cases, even if the alien is already in the U.S. it may be necessary or desirable for the alien to travel abroad, obtain an H-1B visa at a U.S. Consulate, and reenter the U.S. before starting work. This would be necessary if the alien has overstayed his authorized stay in the U.S., or has been employed without CIS permission.
Canadian Citizens: are exempted from having to obtain a visa at a U.S. Consulate in order to seek entry to the U.S. in H-1B status. A Canadian citizen who is the beneficiary of an approved H-1B Visa Petition may seek admission at a U.S. port of entry by presenting the original CIS approval notice, together with a Canadian passport. (note: Canadian citizens may also wish to consider "TN" status pursuant to the North American Free Trade Agreement (NAFTA)).
Family Members: The spouse or child of an H-1B alien is eligible for H-4 visa status as a dependent. Such persons may enter and remain in the U.S. as long as the principal alien maintains H-1B status. They cannot be employed, but may attend school without the need to obtain student visas. An H-4 spouse may independently seek H-1B status if a suitable job offer is secured.
Basic Labor Condition Application Obligations
The first step in seeking H-1B visa status is the filing of a Labor Condition Application ("LCA") with the Department of Labor. In order to file an LCA, an employer must be willing to make the following representations:
That he is offering to pay the alien beneficiary 100% of the Prevailing Wage, or the Actual Wage at the place of employment (as long as the Actual Wage is equal or higher than the Prevailing Wage). The Prevailing Wage is the average rate of wages for those similarly employed within normal commuting distance in the area of intended employment listed on the Application. The Actual Wage is the wage rate paid by the petitioning employer to other workers with similar experience and qualifications who are performing the specific employment in question at the same worksite.
That he is offering benefits and eligibility for benefits provided as compensation for services on the same basis and in accordance with the same criteria as the employer offers such benefits to U.S. workers (under certain conditions the H-1B worker may be offered “home country” benefits which may differ from the benefits offered to U.S. workers).
That he is offering working conditions to the H-1B nonimmigrant worker that will not adversely affect the working conditions of workers similarly employed in the area of intended employment;
That there is no strike or lockout in the course of a labor dispute in the occupational classification at the place of employment;
That the employer has provided notice of filing of the LCA at the worksite by one of the required methods.
That the employer will provide a copy of the LCA to the H-1B worker on or before the date he commences employment.
The employer must comply with the notice requirements of the LCA before filing. If the position is covered by a collective bargaining agreement, notice must be provided to the collective bargaining representative in lieu of posting. If the position is not covered by a collective bargaining agreement, notice may be provided as follows:
By posting a hard copy of the LCA (all four pages) notice in two conspicuous places at the place of employment, for example, on an employee bulletin board,
commencing on or before the date of filing of the LCA, where it must remain for a total of 10 consecutive business days; or
By posting electronically on the employer’s intranet or electronic bulletin board, provided all employees in the same occupation have ready access to the information, for 10 consecutive business days; or
By a one-time e-mail message to all affected employees in the same occupation.
In most cases, the LCA must be posted at any site where the H-1B worker performs services. There are numerous, detailed, and complicated exceptions to this general rule.
If the H-1B worker will work at locations other than the address listed on the LCA, please consult with us about additional posting requirements before proceeding.
Compiling the “Public Access File”
In order to comply with the documentary requirements of the LCA procedure, certain documents must be made available to any interested party, upon request, within one working day. Therefore, the employer must compile and maintain a separate Public Access folder for this LCA which contains the following documents:
a copy of the certified Labor Condition Application and a copy of this four-page LCA Obligations document.
a statement of the wage to be paid to the H-1B worker.
an Actual Wage memorandum which briefly states how the actual wage was computed and states the wages paid to the H 1B worker. The employer must determine the Actual Wage by examining the wages paid to other individuals with similar experience and qualifications who are performing the specific employment in question. This involves three steps:
Defining the specific employment in question: the employer need not include all workers in the same profession if they are not filling the same type of position, but neither should the employer make distinctions based on small variations in job duties. If questioned by DOL, the employer must be able to show that a good faith effort was made to define the group of similarly employed workers.
Identifying from among this group of workers only those with similar experience and qualifications to the H I B worker.
Identifying the differentiating factors that are used to set the individual wages within the selected set of workers. These factors might include length of experience, education, particular expertise, competitive factors, value of client contacts, etc.
If the employer has an established pay schedule or system covering the position in question, this should be included with the memorandum. The Actual Wage Memorandum need not include the mathematical calculations used to arrive at the H-1B worker's salary; instead, a narrative explanation of the process is expected.
a copy of the Prevailing Wage determination.
a statement which identifies the two posting locations and the dates of posting, or a statement documenting that electronic posting or notification was provided.
a statement which confirms that a copy of the approved LCA was provided to the H-1B worker (no later than the date he reports to work).
a summary of the benefits offered to U.S. workers and H-1B nonimmigrants alike, including an explanation of how employees are differentiated, if at all. If the H-1B worker will receive “home country” benefits, this should be explained.
If the employer undergoes a change in corporate structure: then in lieu of filing a new LCA, the employer may update the Public Access file to include a sworn statement by a responsible official of the new employing entity that it accepts all obligations, liabilities and undertakings under the LCAs filed by the predecessor employing entity, together with a list of each affected LCA and its date of certification and a description of the actual wage system and EIN of the new employing entity.
In addition to making the Public Access file available to anyone upon request, the employer must make other documents available to the Department of Labor, if requested. Payroll records may be called for to substantiate the rate of pay to employees in comparable occupations. You must also be prepared to establish that the working conditions of the H-1B worker, and any other employees in the same occupational classification, are similar to working conditions existing in like business establishments in the local area of employment.
Penalties may be imposed by the DOL if after complaint and investigation the employer has been found in violation of any LCA requirements. The Department of Labor may impose the following penalties:
the assessment of back pay for the H-1B worker if the employer has failed to pay required wages;
the payment of civil money penalties of up to $1,500 per violation;
the disqualification of the employer from filing any temporary or permanent employment based immigration petitions for a period of at least one year.