H-1B: Temporary Professional Workers
At the Law Office of Matthew I. Hirsch, we have extensive experience with employer-sponsored filings and many years of successful outcomes with Petitions for H-1B status.
- What is an H-1B Visa?
- What is a “United States Employer”?
- What is a qualified H-1B beneficiary?
- What is a “specialty occupation”?
- What are the labor-related requirements for an H-1B visa?
- What is a “public inspection file”?
- What is the “return transportation requirement”?
- What is the H-1B “cap”?
- When can I file for an H-1B?
- When is an Employer or Petition exempt from the “cap”?
- What is an H-1B dependent employer?
- What additional attestations/procedures are required of H-1B dependent employers?
- What are the penalties for violating requirements for H-1B dependent employers?
- Where can I get more information on H-1B visas?
What is an H-1B Visa?
The H-1B visa is a non-immigrant visa category for temporary professional workers. It is an employer-sponsored category. This means that a petition for H-1B status must be filed by a qualified “United States Employer”, defined below; individuals may not sponsor themselves for H-1B status. In addition, the H-1B category is employer-specific. This means that the H-1B permits the foreign worker to work only for the sponsoring company or organization.
To qualify for H-1B status, the employer, the employee and the position offered must all meet regulatory requirements, described more fully below. In addition, the employer must comply with labor-related requirements relating to wages and working conditions, also described below. A Petition for H-1B status is filed with the U.S. Citizenship and Immigration Service (CIS, formerly INS) and is adjudicated by CIS examiners at a regional processing center.
The following sections describe the various requirements that must be met by the employer and the applicant to qualify for an H1B visa.
What is a “United States Employer”?
An employer seeking to file a Petition for H-1B status must be a “United States (U.S.) employer.” A U.S. employer is a person, firm, corporation, contractor or other association or organization in the United States with an IRS tax identification number known as a Federal Employer Identification Number (FEIN). For a petition to be approved, the CIS must find that a bona fide employer-employee relationship exists. In evaluating whether a bona fide employer-employee relationship exists, the CIS looks at whether the sponsoring employer has the authority to hire, fire, pay, supervise, direct, manage and/or otherwise control the work of the employee. In cases involving technology consultants, healthcare workers or other positions involving third-party worksites, the CIS has regularly required supplement proof to demonstrate the existence of the bona fide employment relationship. For more information on CIS requirements for cases involving third-party work sites, click here.
What is a qualified H-1B beneficiary?
To be qualified for an H-1B, the beneficiary must meet certain educational requirements tied to the “specialty occupation.” As a general rule, the alien worker must possess at least a Bachelor’s degree from an accredited college or university and the degree must be linked to the duties of the position offered. According to regulations, to qualify for an H-1B, the beneficiary/worker must:
- hold a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;
- hold a foreign degree determined to be equivalent to a U.S. bachelors’ degree from an accredited college or university;
- hold an unrestricted state license or certification which authorizes him/her to fully practice the profession in the state of intended employment; or
- have education, specialized training, and/or progressively responsible experience that is equivalent to the completion of a U.S. baccalaureate or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
In some cases, if the lack of an H-1B prevents an otherwise eligible beneficiary from obtaining a professional license or certification, the CIS will grant the H-1B for a one-year period to permit the person to qualify for the required professional license or certification.
What is a “specialty occupation”?
To qualify for an H-1B, the beneficiary must be working in a “specialty occupation.” In general, this refers to a position that requires a bachelor’s degree or higher (or its equivalent) as a minimum for entry into the occupation. The statute defines “specialty occupation” as an occupation which requires 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.
Examples of specialty occupations include: architects, engineers, professors, teachers, researchers, medical professionals, allied health professionals, dietitians, computer professionals, accountants, attorneys, social workers, economists, librarians, business professionals and others. The key to determining whether a position qualifies as a “specialty occupation” is whether or not the position normally requires a degree in a particular field. If a position requires a bachelors’ degree in any field, it may not qualify as a specialty occupation.
According to regulations, to qualify as a specialty occupation, the position must meet one of the following criteria:
- a baccalaureate or higher degree or its equivalent is the normal minimum requirement for entry into the particular position;
- the degree requirement is common to parallel positions among similar organizations; in the alternative, an employer may show that its 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 are so specialized and complex as to be usually associated with the attainment of a baccalaureate or higher degree. A position that would normally qualify as a specialty occupation may qualify if the position is so complex or unique that only an individual with a degree can perform the requisite duties.
What are the labor-related requirements for an H-1B?
In addition to meeting requirements relating to the petitioner, the beneficiary and the position, to qualify for an H-1B, the employer must also comply with certain labor-related requirements. In particular, every Petition for H-1B status (and every Petition for H-1B1 or E-3 status) must be accompanied by a Labor Condition Application (LCA). The LCA is transmitted to the U.S. Department of Labor (DOL), using the DOL’s on-line system, referred to as iCert. The DOL is supposed to take no more than seven days to review and certify the LCA. Once the LCA is certified, it is returned to the employer/attorney as an electronic attachment. Once returned, the certified LCA can be included as part of the H-1B package of documents.
The LCA is not a test of the labor market. The LCA does not require newspaper advertising or other forms for recruitment. The LCA does not require the employer to screen or interview U.S. workers. The LCA does not require proof that the foreign worker has special skills or that the employer has been unable to locate a U.S. worker for the job. Those concepts are associated with employer-sponsored permanent residence, not with the H-1B category.
The LCA is an attestation, made by the Employer, stating that it has complied, or will comply, with certain labor-related requirements including:
- that the employer will pay the H-1B employee the higher of:
- The actual wage rate that it pays to all other individuals with similar experience and qualifications, or
- The prevailing wage level for the occupation in the “area of intended employment”,
- that the employment of the H-1B worker will not adversely affect the working conditions of similarly employed workers in the intended area of employment;
- that there is no current strike/lockout involving the prospective H-1B worker’s position at his/her workplace;
- that the employer has provided notice of the filing of the LCA filing to the employees’ collective bargaining representative for the H-1B occupation or, if there is no such representative, it has posted notice of the filing for ten days in a conspicuous place at the work site on the date the LCA is filed, or within 30 days before it is filed.
What is a “public inspection file”?
In addition to filing the LCA and complying with its attestations, DOL regulations require an H-1B employer to maintain a public inspection file (PIF). The PIF, which must be available for public inspection on short notice, is required to have:
- a copy of the Labor Condition Application,
- documentation of the salary paid to the H-1B employee,
- an explanation of how the actual wage was determined, and
- documentation of the basis used for the prevailing wage.
In general, DOL regulations require employers to make the LCA and supporting documentation available for public examination at the place of business or the place of employment within one working day after the filing of the LCA. An employer must retain copies of the LCA and the public inspection file for one year beyond the end of the period of authorized employment or one year from the date the LCA is withdrawn, except in the case of DOL enforcement action. It is advisable to keep the PIF separate from the employee’s personnel records.
What is the “return transportation requirement”?
In addition to the requirements described above, all sponsors of H-1B workers must agree to pay the alien the reasonable cost of transportation to return to his or her home country if the employer terminates the alien’s employment prior to the end of the authorized employment period. Please note that the return transportation requirement does not apply if the H-1B worker leaves the job voluntarily. The return transportation requirement does not apply if the H-1B worker is terminated at the end of the period of authorized employment. Return transportation does not have to be offered to family members and the H-1B sponsor does not have to pay the return transportation costs of any of the H-1B worker’s personal property.
What is the H-1B “cap”?
The number of new H-1B visas is subject to an annual cap. According to statute, the maximum number of visas is capped at 65,000 per fiscal year; counted from October 1 to September 30. Out of these, 6,800 are set aside for professionals from Chile and Singapore who are eligible for H-1B1 visas pursuant to Free Trade Agreements with the United States. An additional 20,000 visa numbers are available to individuals who have received a Master’s degree or higher from a U.S. institution of higher education. Any unused visa numbers under the Chile/Singapore quota are used for candidates that fall under the regular cap.
When can I file for an H-1B?
Once the annual H-1B cap is reached, it is no longer to file a Petition for H-1B worker. The “cap” renews each October 1, and it is possible to file Petitions up to six months in advance. Therefore, under the present system, on April 1 of a given year, the CIS will begin to receive and count Petitions for H-1B status against the cap for the fiscal year beginning on October 1. In recent years, the H-1B cap has been reached in a matter of days, meaning that qualified employers, seeking to sponsor qualified H-1B workers, were barred from filing Petitions.
When is an Employer or Petition exempt from the “cap”?
Some employers are exempt from the H-1B cap. They can file Petitions for H-1B worker any time of year, without regard to the H-1B cap. The cap does not apply to a person who is or will be employed by:
- an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965;
- a nonprofit organization which is related to or affiliated with an institution of higher education; or
- a nonprofit research organization or a governmental research organization.
For more information about when an employer is exempt from the H-1B cap, click here.
Some petitions or employees may also be exempt from the H-1B cap. For example, the H-1B cap does not apply to a person:
- who has been counted against the H-1B cap in the six years prior to the filing of the new Petition;
- who is the beneficiary of a Petition seeking an extension of H-1B status; or
- who is the beneficiary of a Petition seeking a transfer of H-1B status.
What is an H-1B dependent employer?
An H-1B Dependent Employer is a company that employs a high percentage of H-1B workers. If a company is H-1B dependent, additional attestations and requirements will apply to any Petition for H-1B worker.
An employer is H-1B dependent if it falls into any one of the following three categories:
- employers with 25 or fewer full-time employees having at least seven H-1B employees;
- employers with 26 to 50 full-time employees having at least twelve H-1B employees;
- employers with more than 50 full-time employees having 15% of the workforce in H-1B status.
For information on calculating H-1B dependency, click here.
What additional attestations/procedures are required of H-1B dependent employers?
If an employer is H-1B dependent or has been found to have willfully violated their H-1B obligations within a five-year period, then it will have additional attestation requirements relating to the recruitment of U.S. workers and the displacement of U.S. workers, in addition to the general employer requirements for H-1B visa petitions.
These additional attestation requirements apply only to labor condition applications (LCAs) filed by an employer for a non-exempt H-1B worker. They do not apply to LCAs filed for an “exempt” H-1B worker. An “exempt H-1B nonimmigrant” is an H-1B worker who earns at least $60,000 per year or holds a Master’s degree or higher in a field related to the intended area of employment.
As to any non-exempt worker, each time an employer files an LCA, either for new employment or for an extension of a non-exempt worker, it is required to indicate H-1B dependency status.
If the employer is H-1B dependent, then it must include in the LCA an attestation that it will not displace or lay-off a U.S. worker “in an equivalent job” either within its own workforce or that of another employer (e.g. contractor). Furthermore, an H-1B dependent employer is also prohibited from placing the H-1B worker with another employer (e.g. in a contracting position) to perform work, either in whole or in part, if this would also result in displacing a similarly situated U.S. worker.
In addition, an H-1B dependent employer must also make a good faith effort to recruit U.S. workers for the position before hiring an H-1B worker. The employer must recruit potential U.S. workers for the position through advertising, job fairs and other forms of industry-wide recruitment. Furthermore, the employer must offer the job to any equally or better qualified U.S. worker who applies for the position. The employer must also not favor other non-immigrant employees who have not yet obtained H-1B status, e.g. students on OPT.
If your organization has a high percentage of H-1B workers and if you have questions or concerns about H-1B dependency, contact us.
What are the penalties for violating requirements for H-1B dependent employers?
Depending on the type of violation committed by the employer, civil money penalties may be assessed ranging from $1,000 to $35,000 per violation. Furthermore, employers who commit certain violations may be prohibited from participating in the H-1B program or other immigrant programs for a minimum of one year, and up to three years, depending on the nature of the violation.
Where can I get more information on H-1B visa?
Please note: The law relating to H-1B visas, LCA’s, changes of status, transfers between cap-subject and cap-exempt employers, and other H-1B topics is very complex. At the Law Office of Matthew I. Hirsch, we specialize in H-1B visas and have filed literally hundreds of cases in this category. Mr. Hirsch is a recognized expert on H-1B topics and has frequently presented lectures on H-1B topics to fellow lawyers and other professionals. We welcome the opportunity to consult with you and your organization about H-1B visas, and any other type of employer-sponsored non-immigrant visa. For more information on changing to, or applying for, H-1B status, please contact us.