The H-1B program allows American companies and/or organizations to employ foreign workers who possess both a theoretical or practical application of a body of highly specialized knowledge and a bachelor’s degree or its equivalent, for a temporary period of time. In order to qualify, foreign workers must be employed in a specialty occupation related to their field of study. Foreign workers typically work in the STEM fields as scientists, engineers, computer programmers. Fashion models are also classified under the H-1B category. The H-1B program was enacted by Congress with the intention of helping American employers seek out distinguished foreign workers who possess the necessary business skills and abilities absent within the American workforce. The provisions of the H-1B program allow qualified foreign workers to attain temporary employment having met specific requirements, while protecting American workers from being negatively affected by the temporary employment of these workers. H-1B petitions will begin to be accepted on April 1, 2015 of each fiscal year.
H-1B Cap Limitations
There exists a congressionally mandated cap limiting the issuance of H-1B visas to 65,000 per year, which is why the H-1B visa is commonly referred to as a ‘lottery’ visa. Individuals holding advanced degrees are exempted from the 65,000 cap. Initial H-1B applicants must demonstrate that they have obtained an American master’s degree or higher to be exempted from the cap, however only the first 20,000 petitions received by USCIS will benefit from the exemption. Initial H-1B petitions that are received by USCIS after that limit will count towards the regular cap. The H-1B visa is issued for up to three years but may be extended for another three years.
Other Cap Exemptions
Not all H-1B visas are subject to the 65,000 cap. For instance, U.S.-Chile and U.S.-Singapore free trade agreements mandate that 6,800 visas be set aside for each fiscal year under the H-1B1 program. Any unused visas for H-1B will be saved for the next fiscal year.
Certain H-1B foreign workers in the Commonwealth of the Northern Mariana Islands (CNMI) and Guam are also exempted from the cap according to the Consolidated Natural Resource Act of 2008 (CNRA) Public Law 110-229. H-1B applicants in Guam and the CNMI whose petitions are filed by December 31, 2019 are exempt from the cap.
Individuals cannot apply for an H-1B visa to allow them to work in the US. The U.S. employer must petition for entry of the employee by filing USCIS Form I-129 Petition for Non-immigrant Worker, H supplement, data collection supplement, petitioner’s letter describing the proffered position and Beneficiary’s credentials (as they relate to the specialty occupation), supporting documents including but not limited to: the Beneficiary’s Passport ID page (copy), Beneficiary’s resume, Beneficiary’s academic credentials (degree and transcripts), academic evaluation (if the foreign worker possesses a foreign degree), signed certified LCA, prevailing wage information, printout of specialty occupation position from the Occupation Handbook (OOH), materials on the company’s business such as brochures/website printouts, company product or service information, expert opinion letters (for candidates with work experience) and paying each of the filing fees for each form. USCIS Form I-907 request for premium processing service is optional. Employers can upgrade an H-1B petition to premium processing service at any time. In order for an employer to petition a foreign worker, an employer-employee relationship must exist with the petitioning U.S. employer. An employer-employee relationship exists if the U.S. employer has the right to hire, pay, fire, supervise, or control the work of the H-1B worker. It is possible for a sole or majority owner of an American company or organization to establish such a relationship if they can demonstrate that they have the right to control the beneficiary’s employment. Employers cannot file an H-1B petition or extension for an employee more than 6 months before the employee’s intended start date.
An employer must pay the foreign worker at least the actual or prevailing wage for their occupation, whichever is higher. Employers must attest and be prepared to demonstrate to the Department of Labor (DOL) that they will either pay wages to the H-1B worker that are at least equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the position, or pay the foreign worker the prevailing wage for the occupation in the area of intended employment. Employers make such an attestation when submitting the Labor Condition Application (LCA) with the DOL. When submitting the LCA, the employer must also state the physical location where the employer will be working. If the employer anticipates that the employment location will change during the process, they must submit an additional LCA to ensure it is certified in case of a change. The employer must register their FEIN number with the DOL before submitting an LCA. If the employer has previously petitioned a foreign worker for an H-1B visa, the FEIN does not need to be registered with the DOL. At the time the employer files the I-129 Petition along with the H Supplement, they must sign the certified LCA and maintain public access records and remain H-1B compliant.
What is the Prevailing Wage?
The prevailing wage is defined as the average wage paid to similarly employed workers in a specific occupation in the area of intended employment. The prevailing wage is determined based on the occupation and work location where the foreign worker will be employed. Employers can access information on the prevailing wage by visiting the Online Wage Library published by the Foreign Labor Certification Data Center (OFLC).
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In order to qualify for an H-1B visa, the Petitioner (U.S. Employer) must submit evidence that substantiates that the foreign worker either a) possesses a bachelor’s degree or higher or equivalent work experience for the particular position sought b) that the degree requirement is common for the particular position within the industry, or that the job is so complex or unique that it can only be performed by someone possessing a bachelor’s degree or equivalent work experience in a relevant field for the position c) that the employer normally requires a degree or its equivalent for the position or d) that the nature of the duties necessary to perform the position are so specialized and complex that performance of the duties is associated with attainment of a bachelor’s degree or higher, or equivalent work experience.
Educational or Equivalent Component
As previously stated the foreign worker must possess a theoretical or practical application of a body of highly specialized knowledge and a bachelor’s degree or its equivalent in work experience in lieu of a degree. The reason for this is that the applicant must demonstrate that their degree or equivalent work experience is directly related to the specialty occupation they seek. If the foreign worker has attained U.S. bachelor’s degree equivalency from their home country, the foreign degree and foreign transcripts must be evaluated by an accredited credential evaluator who can attest to the equivalency. If the foreign worker does not have a degree or possesses an unrelated degree to the specialty occupation, but has at least 12 years of relevant work experience directly related to the specialty occupation position, the work experience will demonstrate the foreign worker’s theoretical or highly specialized knowledge. In this situation the foreign worker will need to provide their resume, a detailed statement highlighting the role that will be performed and how the work experience relates to the role, written opinions from experts or previous employers in the field attesting to the foreign worker’s experience related to the position. The U.S. employer can also submit evidence proving that existing employees in similar positions within the company possess similar work experience. If the foreign worker did not complete their bachelor’s degree but completed at least one year of the course of study, each year completed for the degree is equivalent to 3 years of work experience. In many situations, we have demonstrated a combination of academic and work experience to qualify applicants for H-1B visas. The absence of a bachelor’s degree is not the end of the road for an applicant.
Applying at a U.S. Consular post or as a Change/Extension of Status
An H-1B Petition can be filed via a U.S. Consular Post abroad or as a Change/Extension of status if the beneficiary of the petition is in the United States in lawful status. If the Petitioner requests a change or extension of status, the Beneficiary will not be able to travel outside of the United States while the petition is in process. Beneficiaries may elect to apply for Consular Processing for two reasons 1) either they remain outside of the United States or 2) they prefer the flexibility of traveling outside of the United States while the petition is in process.
How long can an alien be in H-1B status?
Under current law, an alien can be in H-1B status for a maximum period of six years at a time. After that time an alien must remain outside the United States for one year before another H-1B petition can be approved. Certain aliens working on projects for the department of defense may remain in H-1B status for 10 years. In addition, certain aliens may obtain an extension of H-1B status beyond the 6-year maximum period, when:
- 365 days or more have passed since the filing of any application for labor certification (LCA), Form ETA 750, that is required or used by the alien to obtain status as an EB immigrant,
- 365 days or more have passed since the filing of an EB immigrant petition.
How should an employer petition for H-1B visa?
The following is a list of some supporting documents that should be included in the H-1B visa petition. The list is not all inclusive and specific details pertaining to your application should be discussed with a licensed attorney in detail. Additional documents may be necessary depending on the specific case. The list includes but is not limited to the following items:
- Signed and Certified Form ETA-9035, Labor Condition Attestation (LCA), with the Department of Labor;
- Form I-129, Petition for Nonimmigrant Worker, with H-Supplement;
- I-129 Data Collection Supplement;
- I-907 Premium Processing (Optional);
- Signed Petitioner Letter of Support on Company Letterhead;
- Printout of the specialty occupation description from the Occupational Handbook (OOH);
- Prevailing wage information from the OFLC;
- Documentation including the certified LCA should be filed with the USCIS Service Center having jurisdiction over the state of intended employment. When the petition is approved, the employer or agent will be sent an approval notice known as Form I-797 and a copy of the approval notice will be forwarded to the American Consulate. Beneficiary’s applying for an H-1B visa at a Consular post abroad will need to obtain the original approval notice from their employer or attorney;
- Beneficiary’s Passport ID page (copy) and copies of U.S. Visa ID pages (if applicable);
- Beneficiary’s I-20’s if on an F-1 visa
- Beneficiary’s DS-2019’s if on a J-1 visa
- I-94 Arrival/Departure record (if Beneficiary is in the United States lawfully)
- a-d same as above for dependents along with marriage certificate and birth certificates with translations;
- Beneficiary’s degree, transcripts, with translations and educational evaluation if the degree is foreign (copies);
- Beneficiary’s resume;
- Evidence of work experience such as expert opinion letters and letters from Beneficiary’s previous employers demonstrating that the Beneficiary has experience directly related to the specialty occupation;
- Any required license or other official permission to practice the occupation in the state of intended employment (copy);
- The alien has education, specialized training, and experience that is equivalent to training acquired by the attainment of a U.S. bachelor's or higher degree in the field;
- Copies of materials on the Company’s business (IRS letter containing FEIN, Secretary of State Registration, Income Tax Returns and Evidence of Financial Position, Brochures, Website printouts, information on the products or services offered);
- If the company is a startup: Copies of Articles of Incorporation, Bylaws, Organization/Incorporation Minutes, Statement of Information, Bank Statements, Business Plans (if applicable);
Family members of H-1B aliens are classified under H-4 category. While the H-4 aliens may undertake full time studies in the United States, they may not engage in employment. To work they must change their status to nonimmigrant category for which work is authorized.
H-1B Dependent Employers and Willful Violators
If your employer is H-1B dependent, meaning that the proportion of the number of H-1B workers in the company is higher than the total number of full-time employees in the company, or if your employer is a willful violator, meaning that they have committed a willful violation or a misrepresentation of material fact during the five year period preceding the date of the application, you should consult an attorney immediately. If you are on a J-1 visa and are subject to the 2-year foreign residence requirement, you must seek a waiver before you accept H-1B employment. Please contact us if this is the case.