H 1B: TEMPORARY PROFESSIONAL WORKER
The H‑1B visa category allows a U.S. employer to hire certain foreign nationals in “specialty occupations.” Most H‑1B petitions are filed on behalf of professionals. Professionals are persons who hold at least a bachelor’s degree or the equivalent in a specialized field of knowledge relating to their employment, where holding such a degree ordinarily is considered a prerequisite to entering the field. In addition to the individual’s qualifications, the actual position being offered must require the services of a professional. Examples of job classifications which may qualify for H‑1B status are engineers, accountants, chemists, computer professionals, and certain business professionals.
Pursuant to the provisions of the Immigration Act of 1990 (“IMMACT 90”), employers are required to file a Labor Condition Attestation (“LCA”) with the U.S. Department of Labor prior to the filing of an H‑1B petition. By filing the LCA, the employer attests: (1) it will pay the Foreign National (“FN”) the “required wage” (the higher of the prevailing wage or the actual wage paid to U.S. workers similarly employed); (2) the FN’s employment will not adversely affect the working conditions of U.S. workers similarly employed; (3) there is no strike or lock‑out which has necessitated the hiring of the FN; and (4) notice of the hiring of the FN has been provided to the companies’ employees.
The “American Competitiveness and Workforce Improvement Act of 1998” expanded on the requirements of IMMACT 90 to include several additional “attestations” for employers who are deemed H‑1B “dependent” employers. An H‑1B “dependent” employer is one who, according to the government, has too high a ratio of H‑1B workers to the total number of employees in the U.S. If the employer is deemed “dependent”, they must also certify to the Department of Labor that the following attestations are true: (1) that they did not displace and will not displace a U.S. worker employed by the employer within certain time frames; (2) that they will not place the H‑1B worker with another employer where the H‑1B owner performs duties in whole or in part at one or more work sites owned, operated and controlled by the other employer; (3) that they have taken good‑faith efforts to recruit U.S. workers using industry‑wide standards and offering prevailing wages; and (4) that they have offered the position to any U.S. worker who applies and is equally better qualified than the H‑1B worker.
Once the LCA is certified by the U.S. Department of Labor, the U.S. employer must file an H‑1B petition with the U.S. Citizenship and Immigration Services’ (the “CIS”) Regional Service Center which has jurisdiction over the location where the FN will be employed. Regional Service Centers generally take from two (2) to six (6) months to adjudicate H‑1B petitions. An additional $1000 expedite fee can be paid to improve adjudication time to fifteen (15) days. If the petition is approved, it may be valid for a maximum initial period of three (3) years. An individual may not remain in the United States in H‑1B status for more than an aggregate period of six (6) years, unless they have completed certain steps towards the Green Card Process as required by the American Competitiveness in the Twenty-first Century Act (“AC21”).
If the FN is outside the United States, the FN will apply for the H‑1B visa at the appropriate U.S. Consulate. FN’s in the United States (either in H‑1B status for another employer or in another valid nonimmigrant status) may apply for an extension or change of their nonimmigrant status. The spouse and minor children of the H‑1B FN may be granted H‑4 visa status. H‑4 status entitles the family members to remain in the United States for the duration of the H‑1B petition, but does not authorize employment in the United States.
IMMACT 90 originally set an annual limitation of 65,000 H‑1B workers permitted each fiscal year. The INS counts original petitions (not extensions) for principal beneficiaries only. This cap was recorded for the first time in August 1997. In 1998, Congress approved legislation to increase the number of available H‑1B visas to 115,000 for both fiscal year 1999 and fiscal year 2000. The number of available H‑1B visas dropped in fiscal year 2001 to 107,500 and resumed a cap of 65,000 for fiscal year 2002 and thereafter. Currently the annual cap is exhausted on the first day of H-1B’s becoming available. As such, we highly recommend filing for new H-1B petitions on April 1st of each year, postdated to begin on October 1st, the first date of the H-1B fiscal year.
There is an exemption of 20,000 H-1B’s and from the annual cap for U.S. Masters Degree Holders. All requirements for the degree must have been satisfied prior to filing. This exemption is usually exhausted in thirty (30) – sixty (60) days. Also exempt from the standard H-1B cap are workers from Singapore and Chile by the Free Trade Act, a specific numerical limitation of 6,800 H-1B visas are set aside for these foreign nationals. Finally, H1Bs hired by institutions of higher learning, affiliated research organizations, nonprofit research organizations and governmental research organizations are also exempt from the cap.
Also in accordance with the “American Competitiveness and Workforce Improvement Act” (“AC21”), the employer must offer H‑1B non‑immigrants benefits and eligibilities for benefits including participation in health, life, disability and other insurance plans, retirement and savings plans, bonuses and stock options, on the same basis and in accordance with the same criteria offered to U.S. workers.
AC21 also provides for “portability” of H-1B status, allowing workers currently in H-1B status (who have also already been counted towards the H-1B cap) to amend their employment to a new employer. The new employer must file a non-frivolous H-1B petition on behalf of the worker, and the petition must be filed in advance of the worker beginning employment with the new employer.