An H-1B nonimmigrant visa is a temporary visa for professional workers in specialty occupations that normally require a bachelor’s degree or equivalent as a minimum requirement. The H-1B visa is valid for three years and can be renewed for an additional three years.
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DEFINING A SPECIALTY OCCUPATION
A “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.”
To establish that a job qualifies as a specialty occupation under USCIS regulations, one or more of the following criteria must be met:
- A bachelor’s or higher degree or its equivalent that is normally the minimum entry requirement for the position; the required degree must be related to the position to be filled.
- 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;
- The employer normally requires a degree or its equivalent for the position; or
- 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.
If the applicant does not possess a bachelor’s or higher degree, he or she may qualify for an H-1B visa based on experience that is equivalent to a bachelor’s degree. The beneficiary must demonstrate recognition of his or her expertise gained through “progressively responsible positions relating to the specialty”. Documentation of recognition could include letters from previous employers, peers and special honors recognition, or authorship of textbooks. With the “three-for-one” rule, three years of specialized training and/or work experience may be substituted for each year of college-level education that the beneficiary lacks.
Immigration processing in general has become much more challenging. USCIS is reviewing petitions in much more detail, and the “specialty occupation” requirement is a growing hurdle to getting an H-1B. Years ago, we saw H-1B approvals for a massage therapist, an airline pilot, and an assistant college sports coach. In most cases. these jobs do not require a bachelor’s degree and would almost definitely not be approved today.
As a result of a line of court cases starting in 2009, meeting one of the above requirements is now only the first step in proving a specialty occupation. In other words, once we show that one of the criterion is met, we don’t automatically win the case. USCIS conducts an additional analysis with higher and more subjective standards.
Similarly, the definition of “related field” is becoming more narrow. For example, a “financial manager” might be hired based on a degree in finance, accounting, economics, or business administration. That might still work. But in 2009, a court found that “budget analysts was not a specialty occupation because DOL resources state that the degree could be “in one of many areas, including accounting, finance, business, public administration, economics, statistics, political science, or sociology.”
It has been particularly problematic for college coach positions, entry level positions, non-profit organizations, and college administration positions to meet the specialty occupation requirement, because they often accept a variety of degrees and involve a variety of duties. Even if a position has previously been approved for an H-1B, USCIS officers are looking much more carefully at specialty occupations and scrutinizing cases that have been approved before.
If you are considering an H-1B petition for a job that does not have a very simple link to a particular degree, talk to an immigration attorney to brainstorm the case. It may be that another visa option is better, or that extra work will be needed to document that the job qualifies as a specialty occupation.
THE REQUIRED FORMS
In order to file an H-1B application for an employee, the employer must submit the following forms to USCIS:
- Form I-129
- Form I-129 H
- Form I-129 H-1B Data Collection Supplement
- The Labor Condition Application (described below)
- Evidence of the specialty occupation and the applicant’s eligibility.
- Form I-907, Request for Premium Processing Service (optional)
If the job itself qualifies as a “specialty occupation” and the applicant is sufficiently qualified, a potential employer may petition for the H-1B on behalf of the foreign national. The Department of Labor requires the filing of a “Labor Condition Application” (LCA) before the petition may be filed. Basically, the rules require the employer to “attest” that the worker will be paid the higher of the actual or prevailing wages, and will not adversely affect other workers.
The LCA, Form ETA-903, is required for an H-1B petition approval. The LCA contains basic information about the proposed H-1B employment such as rate of pay, period of employment, and work location, which must be saved by the employer in a public access file. The LCA must be certified by the Department of Labor before the H-1B petition can be approved by USCIS.
By signing and filing the LCA, an employer makes four attestations or promises. The employer attests:
- It is paying the higher of: the “actual wages” paid to others with similar experience and qualifications, or the “prevailing wage” for the occupational classification.
- It will provide working conditions for the H-1B employee that will not adversely affect the working conditions of workers similarly employed in the area.
- There is no strike or labor dispute at the place of employment.
- It has provided notice of this filing to the bargaining representative (if any); or if there is no such bargaining representative, it has posted notice of filing in at least two conspicuous locations for a period of 10 days.
The Department of Labor (DOL) regulations at 20 CFR 655.731(c) describe the wage requirement for H-1B and Labor Certification purposes. Payment of less than the higher of the actual or prevailing wage is a violation of the LCA.
BENEFITS FOR FAMILY MEMBERS
Spouses and dependent children may obtain H-4 visas as the dependents of an H-1B visa holder. This requires filling out USCIS Form I-539 and providing other documentation for each family member. H-4 visa holders may study in the U.S. but cannot work without obtaining a separate work visa.
Some H-4 family members may be eligible for an employment-authorization document (EAD) if certain conditions are met:
- If the principal applicant (H-1B holder) also holds an approved Form I-140, Immigrant Petition for Alien Worker; or
- If the principle applicant (H-1B holder) has been granted H-1B status under sections 106(a) and (b) of the AC21. Under AC21, H-1B nonimmigrants seeking employment-based lawful permanent residence may be eligible to work and remain in the United States beyond the six-year H-1B period of admission limitation.
For more information on this benefit, please speak to your attorney. You can also find more information on the USCIS website.
RESPONSIBILITIES OF THE EMPLOYER
In addition to filing the above forms and the LCA, employers sponsoring an H-1B worker are almost always required to pay the fees associated with the application.
The DOL regards filing fees and attorneys’ fees relating the the H-1B and LCA activity as a business expense of the employer. Thus, if an alien pays these fees, the DOL takes the position that this should be subtracted from the rate of pay in determining proper employer compliance with the wage rate attestation. 20 CFR 655.731(c)(9). If such a deduction causes the wage received to be less than the actual wage or the prevailing wage, the employer may be liable to penalties under 20 CFR 655.731(c)(8). In practice it is very rare for H-1B employees to be paid significantly higher than the prevailing wage and higher than the actual wage paid to similar employees, so the employer is almost always required to pay the fees and costs.
Recently, a federal court held that employers must also pay the costs for a J-1 212(e) waiver, if it is required for the employee’s H-1B eligibility.
In addition to filing and legal fees, the H-1B Visa Reform Act of 2004 – part of the Omnibus Appropriations Act for FY 2005, Pub. L. No 108-441 (Dec. 3, 2004) – imposed a Fraud Prevention and Detection Fee of $500 that must be paid by the employer regardless of actual/prevailing wage. There is no exemption to this fee for employers in higher education.
If the H-1B application is filed with Form I-907, Request for Premium Processing, an additional $2500 filing fee is required. This fee can arguably be paid by the employer, the employee, or another. It is important to point out, however, that the DOL has been known to conclude that the Premium Processing fee should be paid by the sponsoring employer if the application was expedited at their request (to obtain work authorization for the prospective H-1B worker as quickly as possible). Case law has also supported DOL’s belief that the standard $460 filing fee should be paid by the sponsoring employer and not passed along to the H-1B worker.
Generally speaking, DOL investigations are typically instigated by employee complaints, or the result of a site visit by FDNS. There is a strong possibility that any employer will have an unannounced site visit, at which time questions about payments of fees can be expected. Paying the fees in connection with the H-1B visa petition will ensure that the employer is compliant with the law.
According to Public Law 114-113, additional fees apply to petitioners who employ 50 or more employees in the United States with more than 50% of its employees in H-1B or L nonimmigrant status.
- The Department of Labor has developed online advisories to help employees and employers understand their rights and responsibilities under numerous federal employment laws: H-1B Online Advisor.
- If you are getting your first H-1B, your degree is from outside of the U.S. or Canada, and you are considering consular processing in Canada, please see this article, “Third Country Nationals Should Use Caution When Processing Non-Immigrant Visa Applications in Canada,” for important information regarding visa refusals by the U.S. Embassy in Canada.
- AILA has published a Practice Pointer: H-1B Cap Exemption Developments for Non-Profit Research Organizations.
EXPORT CONTROL RESOURCES
- Export Controls Decision Tree: interactive tool from Stanford University.
- Attorneys who specialize in this area of law:
- Matt Bell, Customs & International Trade, Ernst & Young LLP: firstname.lastname@example.org, www.ey.com
- The Kelley Drye Firm in Washington, DC: Eric Claggerty, M. Brian Churney, Darryl W. Jackson