H-1B Visa

H-1B Status – Specialty Occupations

Purpose of the H-1B Specialty Occupations– Enter the United States temporarily to engage in employment in a specialty occupation.

Procedure – Apply at USCIS Service Center.

Pro – Approved for 3 years, with an extension available for another 3 years. Unlike other non-immigrant categories, there is no dual intent issue with the H-1B or L -1.

Con – H-1B cap of 65,000 per year and constantly changing rules surrounding process and fees.

Family – Spouses and children under 21 receive H-4’s for the same duration as the H-1B.

Points of Interest – One of the most welcome changes in the law for H-1B individuals occurred in October of 2000 when the American Competitiveness in the 21st Century Act (AC21) was signed into law. Included in AC21 was a provision on portability that allowed previous H-1B holders to start with a new employer upon filing the new H-1B petition. This represented a drastic change in the law, because before AC21, individuals could not start with a new H-1B employer until the new H-1B petition was approved. There was also a recent change that allows for some individuals who are in the process of applying for a green card to obtain 7th year extensions on their H-1B while their permanent resident process is pending.

More recent changes stem from the Fiscal 2005 Omnibus Appropriations Bill (H.R. 4818), which contains significant legislative changes to the H-1B category. While the bill does not expand the annual cap, it does allow for an additional 20,000 H-1B approvals during the fiscal year of October 1, 2004 to September 30, 2005 for foreign nationals who were educated in the United States and hold degrees at the Masters level or higher.

In addition, the bill addresses the prevailing wage issue associated with an H-1B petition. As background, an employer is required to pay a foreign worker the “prevailing wage” for each particular occupation. The prevailing wage is generally determined by a state Department of Labor survey or through a private survey company. In the past, the prevailing wage was calculated through a two-tier system with a Level I being akin to entry-level with no supervisory duties and Level II serving as the wage for the more advanced employees. The two-tier system has been a widely known source of frustration and confusion. If enacted, H.R. 4818 will allow the prevailing wage calculation to be divided into a four-tier system to provide more flexibility in the salary determination. The bill, however, offsets this new flexibility with a requirement that the employer pay 100% of the determined prevailing wage rather than the current 95%.

In addition to these substantive changes, H.R. 4818 adds significant filing fees to both categories. For initial H-1B petitions, including those filed to change employers as well as blanket petitions, the United States Citizenship and Immigration Services will require payment of a $500 anti-fraud and detection fee, which is over and above the already established filing fees and the $1000 premium processing option. Moreover, an H-1B petition must also include a “U.S. Worker Training Fee” in the amount of $1,500 if the petitioner employs more than 25 individuals and $750 if the petitioner employs 25 people or less. This training fee, which was previously $1,000 for all petitioners, was eliminated through 2003 legislation. H.R. 4818 reinstates the fee requirement.

 

1. Definition of an H-1B

An H-1B is for individuals coming temporarily to the United States to perform services in a specialty occupation and who meet the requirements for that specialty occupation. A ‘specialty occupation’ means an occupation that requires: (a) theoretical 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 US. The H-1B is for individuals who possess a U.S. Bachelor’s degree or its equivalent, and who are coming to the U.S. to fill a position that normally requires and individual to possess a U.S. Bachelor’s degree or its equivalent.

 

2. Requirements

The two key requirements of an H-1B are to ensure that the individual qualifies, and to ensure that the proposed position in the U.S. qualifies as a “specialty occupation”.

a. Qualifying the Individual

In order to qualify for an H-1B, the individual must possess a U.S. bachelor’s degree or its equivalent. While possessing a U.S. bachelor’s degree from an accredited college or university qualifies the individual’s credentials for an H-1B, not everyone possesses a U.S. bachelor’s degree. However, there are other options that allow an individual to qualify based on education and/or work experience. Therefore, in order to qualify for an H-1B, an individual must:

b. Alternatives to Possessing U.S. Bachelor’s Degree

  1. Possess a U.S. Bachelor’s degree;
  2. Possess a foreign degree that is determined to be the equivalent of a U.S. Bachelor’s degree;
  3. Possess an unrestricted state license, registration or certification that authorizes the individual to practice in that industry in the state of proposed employment;
  4. Possess education, specialized training, and/or experience that are equivalent to a U.S. Bachelor’s degree.

There are several strategies to employ when the individual does not possess a U.S. or foreign degree. The most common is to use an aggregate of the individual’s education and work experience to establish an equivalency to a U.S. Bachelor’s degree.

In order to translate work experience into education, immigration uses the well-known 3 for 1 rule. This rule states that for purposes of determining equivalency to a U.S. bachelor’s degree, three years of specialized training and/or work experience must be demonstrated for each year of college/university the individual lacks.

For example, if the individual possesses two years of university education, he/she must show 6 years of work experience in that industry in order to obtain an equivalency. If the individual possesses no education, he/she must show at least 12 years of work experience in the industry. It is important to note that there is no requirement for any university education in order to qualify for an H-1B.

There are many education evaluation companies in the U.S. that will provide professional education evaluations for H-1B petitions. They will provide an evaluation of a foreign degree, or evaluate an individual’s schooling, training and/or work experience.

c. Qualifying the Position as a “Specialty Occupation”

In order to qualify for an H-1B, the actual position as well as the individual must meet CIS standards. A specialty occupation is a position that is professional in nature and one that normally requires an individual to possess a degree in order to perform the requisite duties. Therefore, even though an individual possesses a Ph.D. in Thermodynamics, an H-1B petition would be denied if the proposed position was for a non-degreed occupation.

The technical requirements with respect to a specialty occupation are:

  1. full state licensure to practice in the occupation, if such licensure is required to practice in the occupation;
  2. completion of the degree in the specific specialty required as a minimum for entry into the occupation; or
  3. experience in the specialty equivalent to the completion of such degree, and recognition of expertise in the specialty through progressively responsible positions relating to the specialty.

Immigration has identified an informal list of occupations that are known “specialty occupations”, or positions that are known to require at least a U.S. bachelor’s degree. They include:

  • Engineers-Computer Systems Analysts-Engineers,
  • Programmer/Analysts-Accountants- Lawyers
  • Scientists-Psychologists-Financial Analysts- Librarians
  • Market Research Analysts-Teachers and Professors
  • Journalists-Management Consultants-Architects

This list is not exhaustive of those that qualify for an H-1B, but these are occupations that USCIS clearly recognizes to be “specialty occupations”.

 

3. How Do You Know if it is a “Specialty Occupation”?

Sometimes it can be unclear whether a position normally requires a Bachelor’s degree. Industry standards change and some companies have stricter requirements than others. For example, some Graphic Design positions require a Bachelor’s degree, while others only require an Associate’s degree. If the employer is unsure whether a position qualifies as a “specialty occupation”, they should submit additional documentation to meet that requirement. That documentation should include:

  1. Evidence that the position is so specialized that it requires someone to possess a degree;
  2. Evidence that the company normally requires a degree for that position;
  3. Evidence that people who currently fill a similar position, or those who have filled the position in the past, have possesses a bachelor’s degree;
  4. Evidence that it is the industry norm to require a bachelor’s degree.

A great resource to use when analyzing industry requirements for a position is a book known as the Occupation Outlook Handbook (OOH). This book describes the duties involved for professional positions, as well as the normal requirements for those positions. I have also found Internet postings such as Americas Job Bank and Monster.com a persuasive source of the industry norms for various professional positions.

a. Must obtain approved Labor Condition Application

In addition to qualifying the individual and qualifying the position, an H-1B petition must also contain an approved Labor Condition Application Form ETA 9035E (LCA) from the Department of Labor. This is a form generated and processed by the DOL that ensures that the U.S. employer will not be adversely affecting U.S. workers, and that they will pay the H-1B employee the “prevailing wage” for that position in that geographic area.

The first step in any H-1B petition is to obtain the prevailing wage for the position with the State Department of Labor. All H-1B positions must pay at least the prevailing wage as determined by the Department of Labor for that position and geographic area.

After obtaining the prevailing wage, but before filing the H-1B, the next step is to obtain an approved Labor Condition Application (LCA) Form ETA 9035E form the Department of Labor. This process has changed several times over the past 2-3 years, but it can now be accomplished over the Internet.

The employer must also post the LCA’s in conspicuous locations on their business premises showing that they are hiring an H-1B. The LCA postings must be up for at least two weeks (10 business days) and should then be kept on file in case of an audit.

b. No Dual Intent problem with the H-1B

Like the L-1, there is no requirement that an H-1B applicant maintain a foreign residence.

 

4. Processing Procedures

Initial H-1B petitions should be made at the Service Center with jurisdiction over the place of employment in the U.S. Unless filing for a change of status within the U.S., the individual will then need to obtain an H-1B visa.

Because Canadians are visa exempt, they do not need to go to a U.S. Consulate to obtain an H-1B visa. After the H-1B is approved, unless it is a change of status, the individual simply goes to a POE to obtain an I-94.

 

5. Duration

An initial H-1B petition may be approved for up to 3 years. The individual may then receive an extension for another 3 years. H-1B status expires after 6 years, and the individual may not obtain anymore stay in H-1B status unless he/she has been outside the U.S. for a period of at least one year or unless s/he qualifies for extensions beyond six years under AC21.

The Vermont Service Center (VSC) recently confirmed that a fresh allocation of 6 years in H-1B status under 8 CFR §214.2(h)(13)(iii) is available only after the Beneficiary has been physically outside the U.S. for the full year. The I-129H petition may not be filed until the Beneficiary has been outside the U.S. for the full year because eligibility must be demonstrated at the time the petition is filed (8 CFR §103.2(b) (1)). If the I-129H petition is filed before the Beneficiary has spent the immediate prior year outside the United States, then the Beneficiary would not be eligible for the benefit sought at the time the petition is filed, and the petition would be denied. USCIS checks IBIS and other databases to track the admissions of the individual to the United States. Any time spent physically present in the United States during the one year period must be recouped abroad before the individual may be eligible for another 6 years in the H classification under 8 CFR §214.2(h)(13)(i)(B).

Under the American Competitiveness in the Twenty-first Century Act (AC21), H-1B status can be extended beyond the sixth year in either one year (AC21 section 106(a)) or three year (AC21 section 104(c)) increments.

One Year H-1B Extension under AC21

Sec. 106. Special Provisions in Cases of Lengthy Adjudications

(a) Exemption From Limitation – The limitation contained in section 214(g)(4) of the Immigration and Nationality Act (8 USC 1184(g)(4)) with respect to the duration of authorized stay shall not apply to any nonimmigrant alien previously issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) of that Act on whose behalf a petition under section 204(b) of that Act to accord the alien immigrant status under section 203(b) of that Act, or an application for adjustment of status under section 245 of that Act to accord the alien status under such section 203(b), has been filed, if 365 days or more have elapsed since –

  1. the filing of a labor certification application on the alien’s behalf (if such certification is required for the alien to obtain status under such section 203(b)); or
  2. the filing of the petition under such section 204(b)

(b) Extension of H-1B Worker Status – The Attorney General shall extend the stay of an alien who qualifies for an exemption under subsection (a) in one-year increments until such time as a final decision is made on the alien’s lawful permanent residence.

Three Year H-1B Extension Under AC21

Sec. 104(c) One-Time Protection Under Per Country Ceiling

Notwithstanding section 214(g)(4) of the Immigration and Nationality Act (8 USC 1184(g)(4)), any alien who–

  1.  is the beneficiary of a petition filed under section 204(a) of that Act for a preference status under paragraph (1), (2), or (3) of section 203(b) of that Act; and
  2. is eligible to be granted that status but for application of the per country limitation applicable to immigrants under those paragraphs may apply for, and the Attorney General may grant, an extension of such nonimmigrant status until the alien’s application for adjustment of status has been processed and a decision is made thereon;

May apply for, and the Attorney General may grant, an extension of such nonimmigrant status until the alien’s application for adjustment of status has been processed and a decision is made thereon.

 

6. Helpful Advice for H-1Bs

Policies and procedures surrounding H-1B filings change on a monthly and yearly basis. In addition, each year brings more exceptions to the general rules and more wrinkles to H-1B portability, 7th year extensions, the H-1B cap and appropriate filing fees. Since there are no regulations that provide guidance to many of these issues, there are still many unanswered questions and too much misinformation with respect to these changes. An individual applying for an H-1B or looking to take advantage of a recent change in the law should make sure that they fully understand all of their options and how filing something today can possibly adversely affect them in the future.

H-1B Fiscal Year (FY) 2013 Cap Season

H-1B Specialty Occupations, DOD Cooperative Research and Development Project Workers, and Fashion Models

 

7. For More Information on H-1B Visas