Description

An H-1B visa is a nonimmigrant visa that permits foreign professional workers in ‘specialty occupations’ to be employed in the United States. Although it is a complex process with strict eligibility requirements, it is often a favored employment-based petition. Under the H-1B program, employers who are unable to find American workers with the required skills and abilities to perform particular occupations are permitted to hire foreign workers. The H-1B program extends its opportunities to foreign professional workers physically present in the United States or currently residing abroad. An H-1B visa approval authorizes a foreign professional worker to remain in the United States for temporary employment. This classification is generally granted for three (3) years, and it has an extension option for up to an additional three (3) year term. Unfortunately, the employer may opt to terminate an H-1B occupation and be required to comply with all obligations associated to its termination.

A position must meet certain requirements to qualify as a specialty occupation for the purposes of the H-1B program. The occupation must require theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor’s degree or higher in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. Additionally, a bachelor’s or higher degree must normally be the minimum entry requirement for the position, or the employer should normally require a degree for the position. The prospective employee must hold a U.S. bachelor’s or higher degree (or foreign equivalent) required by the specialty occupation. An employer may not accommodate to a foreign professional worker’s skills, abilities, and/or education level. On the contrary, the employer must demonstrate a fair hiring process for any worker possessing the needed skills, abilities, and education, and who can perform the specialty occupation. An H-1B visa filing consists of a multi-step process involving various agencies such as USCIS, U.S. Department of Labor (DOL), Department of State National Visa Center (NVC), and U.S. embassy or consular office abroad.

In the situation where the foreign professional worker has a lawful entry and remains in the United States, a change of nonimmigrant status to an H-1B visa will be processed and adjudicated in the United States. However, if the foreign professional worker is abroad and sponsorship occurred while residing outside of the United States, the case will likely be adjudicated through consular processing at a U.S. embassy of consular office abroad.

As part of this complex multi-step process, the employer must generally first assess the prevailing wage requirements accordingly to the proposed occupation. The prevailing wage is normally determined by three factors: 1) job type, 2) level of seniority, and 3) location/area of intended occupation. The employer’s obligation is to ensure fair H-1B wage levels associated with the proposed H-1B specialty occupation. An employer may check the Foreign Labor Application Data Center to determine the corresponding H-1B prevailing wage rate. Once a wage level is determined accordingly, the employer must generally file a Labor Condition Application (LCA) (Form ETA-9035) with the DOL to establish conditions of employment. An LCA verifies an employer’s compliance to pay the required wage rate based on area of intended employment, to maintain neutral working conditions, to impede any impact from labor disputes, to provide equal benefits across the workforce, and to adequately notify current employees of the proposed occupation.

A crucial part of the H-1B process is to ensure that the employer’s hiring and documentation process is in compliance with the DOL. An employer may be audited, and the workplace inspected to verify compliance. As required, the employer must post a notice (to include a copy of the filed LCA) in at least two (2) conspicuous locations at each worksite where the H-1B will be employed. The job postings must disclose all relevant information available to any interested worker. All documentation in support of an employer’s fair recruitment/hiring practices must be safely filed away and be made available in case of an investigation.

An employee may proceed to file a Petition for Nonimmigrant Worker solely after being selected by USCIS during the lottery selection process. As the interested party to hire a foreign professional worker, the employer is responsible for all associated fees and documentation. The employer may be subject to fees related to USCIS initial H-1B petition filing fees, the American Competitiveness and Workforce Improvement Act (ACWIA) fee, a Fraud Prevention and Detection Fee, a user fee based on the number of employed full-time employees, and an additional fee based on the percentage of employed H-1B or L nonimmigrant status employees. User fees are generally waived to educational institutions or affiliated nonprofit businesses. It is recommended to verify all the employer’s financial responsibilities prior to the submission of any petition as fees/payment procedures may differ on a year-by-year basis.

The filing of an H-1B petition is a complex procedure as any discrepancy and/or erroneous data may cause USCIS’ rejection. The H-1B petition must be well-documented and supported by documentation to verify a ‘specialty occupation’ and required bachelor’s or higher degree. It is important to provide the foreign professional worker’s credentials related to education and experience. It is recommended for a foreign degree credential evaluator to assess the foreign degree(s) and/or experience to ensure equivalency to a U.S. bachelor’s degree required for the proposed occupation.

Congress allocated 65,000 H-1B visas each year for foreign workers which are selected through a lottery system. There are certain organizations that are exempt from the visa cap. It is important to note that there is a specific filing period for all lottery-based selected prospective employers that were granted authorization to phase two of the H-1B filing process. Those selected will compete for the 65,000 H-1B visas allocated each year for foreign workers. However, there is a ‘cap-exempt’ category which generally allocates an additional 20,000 H-1B visas to foreign workers holding advanced degrees at a master’s level or higher.

In the situation that an H-1B petition is approved and the foreign worker remains in the United States under valid status, an Approval Notice will be provided in the mail with the corresponding change of nonimmigrant status. The approval of an H-1B petition will permit the foreign worker to commence employment. Should the H-1B worker be residing abroad, the Approval Notice will then be filed with the corresponding U.S. consulate to obtain an H-1B visa on a current passport to secure entry to the United States.

Benefits

The filing of an H-1B petition does not grant any foreign professional worker lawful status in the United States. However, successful navigation of all phases of an H-1B process and approval, will grant the foreign professional worker authorized stay in the United States for the duration of H-1B status. The foreign professional worker may also become eligible to apply for a social security number and/or employment authorization card pursuant to an approved H-1B petition.

An H-1B nonimmigrant visa could potentially lead to a future adjustment of status (green card) pathway in the United States. A foreign professional worker may be eligible for an adjustment of status if a prospective employer meets sponsorship eligibility and submits a PERM Labor Certification as well as an Employment Certification and an Immigrant Petition for Alien Worker. Although this process follows strict eligibility requirements, is an alternative road to secure permanent lawful residence in the United States.

Derivative Dependents

A prospective employer cannot include the foreign professional worker’s spouse and/or children (under 21 years old) as part of an H-1B petition. However, as dependents of an H-1B worker, they may apply for an H-4 visa and apply for Employment Authorization Document (EAD) in order to be authorized lawful employment in the United States.

It is important to understand that any modification to the principal H-1B worker’s employment, such as an extension, transfer, or termination, will also apply to all H-4 visa recipients.

Process Description

There are several stages to the H-1B process and timeframes vary depending on the agencies’ internal policies for handling H-1B petitions and filing requirements. Since all H-1B petitions are time sensitive, early preparation and gathering of documentation is highly recommended.

USCIS has recently implemented a new H-1B electronic registration process to facilitate the H-1B lottery selection. This process is less costly and lessens the burden on all employers to submit all filings at once. It also minimizes USCIS’ review process of all filed H-1B petitions. The purpose of the electronic registration is for every prospective employer to register and pay the associated fee of $10 for every foreign professional worker they intend to offer employment. The employer is generally granted a 14-day registration window to update and submit basic information associated to the foreign professional worker. Once the registration window closes, USCIS will conduct the lottery selection and only the selected employers will be granted authorization to move forward to the next phase of the case, the filing of an H-1B petition packet. At this phase, employers are required to provide proof of lottery selection, associated forms, fees, and documentation in support of the H1-B filing. USCIS will assess and adjudicate each case accordingly.

Although all H-1B petitions are subject to a lottery selection process, once selected, the employers may choose to request Premium Processing Services from USCIS. Proper form and corresponding payment must accompany the H-1B petition packet. The Premium Processing Services guarantees 15 calendar day processing on H-1B petitions. USCIS will consider processing actions for the issuance of approval notices, request for evidence, intent to deny, denial notices or investigation requests. However, if USCIS is unable to take any processing action within those 15 calendar days, USCIS will grant a refund to the employer and continue regular processing of the H-1B petition.

Unfavorable Circumstances

An H-1B petition is a complex process to navigate through due to the strict eligibility requirements and procedures required to comply with DOL’s and USCIS’ regulations. Employer’s failure to comply with fair recruitment/sponsorship practices may result in a referred investigation for suspected fraud or misrepresentation of information. Additionally, the prospective employer and foreign professional worker must provide accurate documentation that establishes eligibility of skills and performance in accordance with the proposed specialty occupation. Failure to present corresponding documentation and/or accurate information may result in the denial of the H-1B petition.

Although the foreign professional worker’s past or present criminal history is not inquired during the initial filing of H-1B petition, it may negatively impact the consular processing and/or extension requests. Foreign professional workers with felony convictions or significant misdemeanor convictions may not be eligible for an H-1B status. It is best to consult with a licensed attorney and/or an accredited legal representative to confirm eligibility by either the prospective employer and/or foreign professional worker prior to initiating the H-1B process. A licensed attorney may be able to assess the circumstances according to the law, criminal bars, and restrictions to confirm the best course of action.

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Citations

H-1B petitions are processed and adjudicated under complex and strict eligibility requirements. Certain relevant laws and regulations are specified under the Immigration and Nationality Act (INA), Code of Federal Regulations (CFR) and/or U.S. Code. Some of the applicable laws and regulations include:

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Supporting Documents

An H-1B petition must generally be supported by documentation that establishes an employer’s fair recruitment/sponsorship practices as well as the foreign professional worker’s education and skills/abilities required to perform the proposed specialty occupation. Some of the required supporting documentation may include:

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