Professionals and Skilled Workers (H-1b)
The H-1b visa category permits U.S. employers to hire non-US professionals in “specialty occupations” and employ them in the United States on a temporary basis, generally up to six years. The intent behind this program is to permit US employers (and, thereby, the US economy) to benefit from the expertise provided by non-US professionals, but not at the expense of permanently displacing US workers. The law does not require a prospective H-1b employer to establish a substantive determination of need or demonstrate that suitable prospective employees are unavailable to the employer, streamlined processing can permit relatively rapid deployment of non-US employees.
Congress has established a cap of 65,000 H-1b visas per fiscal year (with an additional 20,000 visa “exemptions” available per year to graduates of U.S. universities holding Masters Degrees and higher in any subject. As a result, each year the allotment of H-1b visas is exhausted, most commonly during the first week of April, the first opportunity for employers to file H-1b petitions for the Federal Fiscal Year commencing October 1 of the following year. Where more petitions are filed during the first week of availability than USCIS requires to exhaust the annual allotment, lotteries are held to randomly select petitions for adjudication.
Additionally, there are numerous regulatory burdens imposed on employers that may increase cost, disclose sensitive wage and benefit information to broader scrutiny within the workforce and to third parties, and create additional compliance burdens for HR staff. All told, however, the H-1b visa is a valuable and effective mechanism to enhance an employer's competitive edge by facilitating the hiring of foreign professionals. For prospective, qualified employees, the H-1b provides an attractive mechanism to secure employment authorization in the United States, to bring their spouse and minor children, and to maintain the potential to adjust status to permanent residence in the future.
Who May Petition
The law permits United States employers to petition the USCIS for authority to hire identified skilled workers for H-1b positions. A United States employer is defined as:
- a person, corporation or other business entity which engages an individual to work in the U.S.;
- who has the power to control the work of that individual; and
- has obtained an internal revenue service tax identification number.
This broad definition leaves open the possibility for one entity to hire an individual and oversee her day-to-day activities, while another entity, such as the US employer's foreign corporate parent, pays her salary. It also sustains the opportunity for a sole shareholder corporation to petition on behalf of its non-US shareholder to be hired as sole employee (although the USCIS may invoke other arguments to deny such petitions).
The H-1b employee must be engaged in an occupation that requires: (1) the application of a body of highly specialized knowledge; and (2) the attainment of at least a bachelor’s degree or equivalent experience in the specialty field. To qualify as a specialty occupation, USCIS rules require a position to meet one of the following criteria:
- minimum educational requirement for the position is normally a bachelor's degree or higher;
- the employer's degree requirement is consistent with that used by other organizations for comparable positions;
- the employer normally requires a degree or equivalent for the position, or
- the nature of the specific duties is so specialized that knowledge required to perform them is usually associated with attainment of a bachelor's degree or higher.
This broad language has been found to include occupations in the fields of architecture, engineering, mathematics, social sciences, medicine and health, business specialties, law, accounting, education, veterinary science, and journalism, among many others.
Prospective Employee Qualifications for Specialty Occupation
In order to qualify for a particular specialty occupation, an employee must:
- have completed a degree required for the occupation, or have experience in the occupation equivalent to completion of such a degree and achieved recognition of their expertise through progressively responsible positions related to the specialty; and
- hold any necessary license required by the state in which she will work.
The USCIS may deem an individual to have achieved the equivalence of an advanced degree by a number of means, including through:
- Evaluation by an academic official who is qualified to grant college-level credit on the basis of experience;
- Evidence of the individual passing a college level equivalence examination such as the College Level Examination Program (CLEP), or Program on Noncollegiate Sponsored Instruction (PONSI);
- Determination by a credential evaluation service that education completed abroad is sufficient to meet U.S. academic standards for the otherwise required degree;
- The individual's certification from certain nationally-recognized professional organizations; or
- The USCIS' determination that the employee's education, training, and work experience is equivalent to a degree.
In regard to the last point, USCIS deems that three years of experience and training may equate to one year of college level education toward the bachelor’s degree the employee lacks. USCIS equates five years of post-bachelors experience to a master’s degree. This experience-derived alternative to possession of a particular academic degree has proved useful to many H-1b employees.
Labor Condition Application
The petitioning employer must secure a Labor Condition Authorization (LCA) from the US Department of Labor. The application describes the position's title, location, wage, period of employment, location, and method of determining the prevailing wage. Most significantly, the LCA requires the employer to attest that:
- Wages offered to the H-1b employee are the higher of the actual wage the employer pays for comparable positions or the local prevailing wage for positions of substantially the same duties and responsibilities;
- Employment of the H-1b will not adversely affect the working conditions of similarly situated employees;
- The position is not one for which a strike or lock-out is in effect at the employee's proposed workplace; and
- A copy of the LCA has been provided to other employees and, where applicable, to their union.
The employer's prevailing wage determination may be supported by several alternative methods, depending on the circumstances, including federal government wage data, a wage determination from the National Prevailing Wage Center, a union contract (if there is one), or a private wage survey published by an independent authoritative source.
The employer must commit to paying the H-1b within 30 days of her entry into the United States or within 60 days of grant of a change in status from another nonimmigrant category. The employee must, as a general rule, continue to work throughout the period of employment, and the employer may not "bench" the employee, i.e., place the employee on involuntary un-paid leave. The employee will, however, be eligible for time off available under Family Leave Act protection. If the nature of the employee's position changes, such as in the event of a job promotion or transfer, the employer must seek and obtain a new LCA.
Public File Obligations
The H-1b employer must maintain certain documents (both during and after an employee's term) within a public access file. This file must be made available on request to persons asserting an H-1b related labor complaint, as well as to certain other interested parties. This file must include:
- A copy of the LCA;
- A document describing the wage rate payable to the H-1b employee;
- A document explaining the method by which the employer determined the wage payable to the H-1b;
- A document describing the determination of the prevailing wage;
- A copy of the notice of the H-1b petition as provided to employees and/or the union;
- A summary of the benefits offered to U.S. workers in the same occupation classification as the H-1b; and
- If the employer has been involved in a merger, acquisition, or other corporate restructuring, a document demonstrating the employer's agreement to assume the prior employer's commitments and obligations with respect to the H-1b petition.
While Congress has placed a cap of 65,000 H-1b visas per year with an additional 20,000 “visa exemptions” for advanced degree graduates of U.S. universities, for a total of 85,000 H-1b visas annually, and demand consistently exceeds supply. In 2016 over 236,000 petitions were filed in the seven days USCIS was accepting petitions. In 2015, the numbers were nearly the same, with nearly 233,000 petitions filed within seven days.
Each year, once USCIS receives sufficient petitions to meet the cap, they use a computer-generated process, also known as the H-1b “lottery”, to randomly select the petitions that will actually be processed. The lottery occurs in several stages. First, petitions submitted for the “Master’s Cap” of individuals with advanced degrees from U.S. universities are pooled, and 20,000 petitions are randomly selected. The petitions eligible under the “Master’s Cap” but not selected in the first lottery are combined with all other petitions. This combined pool is then put through a second lottery to select the additional 65,000 petitions under the regular H-1b cap.
The petitions that are not selected in the lottery process are returned to the petitioners along with the filing fees.
H-1B Petitions Not Subject to the Lottery
Significantly, once an individual is “counted” toward the H-1b cap in any year, he or she is not subject to the lottery process for H-1b employment with subsequent employers. The six year maximum period of stay still applies, but days in which the worker is not in H-1b status (i.e., outside the U.S. or in the U.S. in a different nonimmigrant status) can be “recaptured” and added to the H-1b time.
The cap also does not apply to certain academic and non-profit research institutions seeking to hire temporary professionals. Notably, USCIS policy permits H-1b workers employed at a cap exempt institution and who have never been “counted” in a lottery to concurrently work for a non-cap exempt company as long as the cap exempt employment continues. Because part time H-1b employment is permitted, this is a substantial benefit to workers employed with cap exempt institutions willing to permit their employees to hold two jobs.
The H-1b cap also does not prevent employers from pursuing other nonimmigrant options that may be available, such as:
- L-1 classification for intracompany transferees;
- TN classification for citizens of Canada and Mexico in certain professions;
- E-3 classification for citizens of Australia in specialty occupations;
- H-1B1 classification for citizens of Chile or Singapore in specialty occupations;
- H-3 trainees;
- O-1 classification for extraordinary ability individuals; or
- J-1 classification for Professors or Research Scholars.
Portability to a New Employer
The H-1b employee is not bound to her original employer throughout the term her H-1b status. If she does wish to change jobs, her new employer must file a new H-1b petition and received proof of filing with USCIS before the employee may commence work with the new employer.
The employee need not await grant, however. The employee may commence work with the new employer upon the new employer's obtaining proof of filing with the USCIS and the employee may continue to work while the petition is pending with USCIS.
In the event that the new employee must travel outside of the United States before grant of the H-1b, care must be taken to ensure she carries appropriate documentation to gain readmission to the United States in the appropriate category on return, since the original H-1b will have been terminated upon her departure from the prior position. Procedures for readmission with a pending portability petition require, among other things, that the employee be otherwise admissible, possess a valid passport, and provide proof that she was originally admitted on an H-1b visa, and proof that a renewed H-1b petition is on file and pending.
If the petition is approved, the employee may continue to work for the duration of their status. However, if the petition is denied, unless they have other nonimmigrant status that authorizes them work for the employer, they must stop working. In addition, if the individual does not have other nonimmigrant status that allows them to live in the U.S., they must depart the country immediately. There is no grace period for such individuals.
The spouse and minor children of the H-1b employee may accompany her to the United States and reside with her for the duration of the approved term. These individuals are given H-4 status. Persons in the U.S. in H-4 status may not obtain employment within that status (unless the H-1B spouse is the beneficiary of an approved I-140 immigrant petition or an H-1B extension beyond the six-year limit pursuant to specific provisions of AC21, in which case the H-4 spouse may apply for employment authorization). All persons in H-4 status may attend an educational institution as students. They may also secure H-1b or other employment status independently. H-1b dependents also have the option of obtaining admission to the United States on business visitor (B-1) or tourist (B-2) visas (neither of which authorize employment).
Termination of Employment
If the employer terminates the H-1b employee prior to the end of the approved term, the employer is obligated to provide return transportation abroad. This requirement does not apply where the employee voluntarily terminates early, nor does it require the employer to cover the cost of travel for the employee's dependents. While the employer may not impose a penalty on the employee's voluntary early termination, it may require the employee to agree to payment of liquidated damages to cover the employer's expenses related to the early termination. The difference between a prohibited penalty and a permissible liquidated damage provision is generally the subject of the contract law of the state of employment.
Upon termination of employment (whether voluntary or involuntary), the H-1b beneficiary may remain in the U.S. for up to 60 days, or until the end of her authorized period of stay, whichever is shorter). If the H-1b finds a new job, she may be able to port to new employment without leaving the U.S., provided that the new employer files the H-1b petition during the grace period. Capable immigration counsel may be of great assistance at such times.
Extension Beyond Six Years
Generally, the maximum duration of stay in H-1b status is six years. However, time spent overseas during the H-1b time can also be added on to the end of H-1b time, a feature known as “recapture”. The H-1b can also be extended beyond the six year maximum in cases where an I-140 petition for employment-based permanent residence, or a labor certification application has been filed and pending for 365 days or more. In such cases, the H-1b employee may receive extensions of time in one year increments until the petition is acted upon. The H-1b can also be extended beyond six years, in three year increments, if the employee is the beneficiary of an approved I-140 petition and is waiting for a visa number to become available. Note that the pendency of a petition for permanent residence will not extend H-1b status that expires prior to the end of the 365 days, so it is wise to file the I-140 more than one year prior to end of the H-1b term.
Tievsky Immigration Law is skilled in preparing H-1b petitions for a wide variety of industries and occupations. Our attorneys are available to consult with both employers and employees to discuss their options and responsibilities.