Who needs to obtain H1-B visa?

Employers seeking to hire nonimmigrant foreign nationals as workers in specialty occupations or as fashion models of distinguished merit and ability need to apply the H-1B nonimmigrant visa on behalf of the foreign employees.

Can a foreign worker obtain H-1B visa for himself/herself?

No. H-1B status requires a sponsoring U.S. employer; an individual cannot gain status on his/her own.

What is “specialty occupation“?

“Specialty occupation“ is defined to mean “an occupation that requires

1. theoretical and practical applicatiofn of a body of highly specialized knowledge, and
2. 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 United States.

What are the factors reviewed by the USCIS in determination of “specialty occupation“?

The most important factors reviewed by the USCIS are:

1. a bachelor's or higher degree in a specific field is the entry-level requirement;
2. the degree requirement is accepted throughout the industry in parallel positions among similar companies;
3. absent such acceptance, the employer can show that the particular position is so complex or unique that a degree is required;
4. the employer's normal requirement for the position is a degree (that is, other persons filling parallel positions hold degrees or the prior occupants of the position held degrees);
5. the complexity of the specific job duties is usually associated with attainment of a degree; and
6. the level of responsibility and authority involved in the position is usually associated with professional standing.

Does the size of the employing company influence approval rate of an application?

The USCIS has increasingly relied on the size factor in determining whether a position qualifies as a specialty occupation. In view of this trend, small employers will need to present a particularly strong case that it needs a specialty occupation worker, such as by demonstrating a prestigious client list or concrete plans to attract such clients.

Who is a qualified foreign worker for the purpose of H-1B?

Under the USCIS rules, a foreign worker is considered qualified to perform services in a specialty occupation if he/she:

1. holds a U.S. bachelor's or higher degree required to enter the specialty occupation from an accredited college or university;
2. holds a foreign degree determined to be equivalent to a U.S. bachelor's or higher degree required to enter the specialty occupation;
3. holds an unrestricted state license, registration, or certification that authorizes him/her fully to practice the occupation and be immediately engaged in that occupation in the state of intended employment; or
4. 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.

Does the foreign worker need to obtain a license if a position to be filled requires a license?

Yes, the immigration rules require that a foreign worker be immediately able to fulfill the duties of his/her specialty occupation with respect to any applicable state licensing requirement for professionals in the field. Normally a permanent license must be obtained in order for a person employed in a field in which a license is required to qualify for H-1B status. However, in some instances, a state will permit a professional to fully practice his/her profession with a temporary license and such licenses will be accepted by USCIS.

What is Labor Condition Application (LCA)?

Before a petition can be filed with USCIS to qualify the foreign worker as a person engaged in a specialty occupation for H-1B purposes, the employer must first file a labor condition application with the DOL, in which it must make several required attestations. After the Department of Labor certifies the LCA, the employer will apply to the U.S. Citizenship and Immigration Services (USCIS) for approval to employ a foreign worker under H-1B status so that alien workers may be hired.

What must an employer do before filing an LCA (Labor Condition Application)?

There are two things an employer must do before filing an LCA?

1. First, the employer completes preliminary actions prior to filing an application with the DOL. It must determine the prevailing wage for the position using one of the following:
   • Requesting that a National Prevailing Wage and Helpdesk Center (NPWHC) determination of prevailing wage determination be made (on or after January 1, 2010).
   • Using a rate set forth in a collective bargaining agreement;
   • Using a determination for the occupation and area issued under the Davis-Bacon Act (DBA);
   • Using a determination for the occupation and area issued under the McNamara- O'Hara Service Contract Act (SCA);
   • Using a survey conducted by an independent authoritative source; or
   • Using another legitimate source of information including the OFLC Online Data Center.
   DOL rules state that “the employer is not required to use any specific methodology to determine the prevailing wage.“ The rules state, however, that if a collective bargaining agreement between a union and the employer exists that contains a wage rate applicable to the occupation, that rate must be considered the prevailing wage.
2. The employer must also inform U.S. workers of the intent to hire a foreign worker by posting the completed LCA Form ETA 9035E, for the position. The posting must occur within the 30-day period preceding the date that the labor condition applications is submitted to the DOL. Posting may occur in one of two methods: hard copy or electronic notice. The hard copy notice must be given to the bargaining representative for workers in the occupation or, if there is no bargaining representative, be posted for 10 consecutive days in at least two conspicuous locations at each place of employment where any H-1B, H-1B1, or E-3 nonimmigrant will be employed. Distribution can be by whatever means the employer normally communicates with its employees including electronic postings (e.g., e-mail, bulletin board, and home web page). A copy of the LCA must also be provided to each nonimmigrant worker working pursuant to that LCA.

How long is a prevailing wage determination valid?

A prevailing wage determination will be valid for filing a period of ninety days to one year after issuance by the National Prevailing Wage and Helpdesk Center (NPWHC). The employer must file its LCA within the validity period specified on the form. The employer has the option of requesting a redetermination by submitting supplemental documentation, for example, an alternative wage source. The employer may also challenge the prevailing wage determination by requesting review by the NPWHC director.

Can a prevailing wage determination be reviewed?

Yes, an employer may request review of a PWD (or a redetermination) within ten days of the date of issuance. An employer may also request BALCA review of the NPWHC's decision within thirty calendar days of the date of the decision.

May an employer ignore the prevailing wage determination and uses one of other methods of determining wages?

Yes. Under current DOL policy the employer can choose to ignore completely the NPWHC determination if it disagrees with that determination and to use one of the other methods for establishing the prevailing wage.

What are the restrictions of an “independent authoritative source“?

The DOL rules define an independent authoritative source as a “professional, business, trade, educational, or governmental association, organization, or other similar entity“ that has a recognized expertise in an occupational field.

Use of independent authoritative sources must also conform to the criteria set forth in the LCA rules and November 2009 prevailing wage guidance. In the event of an investigation, the employer will need to justify its use of the alternative wage source under these standards.

Is there poster requirement for LCA (Labor Condition Application)?

No, there is no poster requirement.

Is there notice requirement for LCA?

There is a notice requirement. The employer must inform U.S. workers of the intent to hire a foreign worker by providing notice of the filing of the LCA to the bargaining representative if there is one, or, if there is no bargaining representative, by posting notice of filing in two conspicuous locations at the employer's establishments, or by providing electronic notice. The notice must be provided on or within the 30-day period before the date that the labor condition application is submitted to DOL.

How can notice to U.S. workers be given?

Notification may occur in one of two methods: hard copy or electronic notice. The hard copy notice must be given to the bargaining representative for workers in the occupation or, if there is no bargaining representative, be posted for 10 consecutive days in at least two conspicuous locations at each place where any nonimmigrant will be employed. Notice can also be provided by whatever electronic means the employer normally communicates with its employees (e.g., e-mail, bulletin board, and home Web page).

What form should an employer file to obtain H-1B visas and what attestations must an employer make in LCA (Labor Condition Application) ?

To obtain H-1B status approval, the employer must first file a Labor Condition Application (LCA), Form ETA 9035 or Form ETA 9035E, with the Department of Labor. The employer must state that it will:

1. Pay the nonimmigrant workers at least the local prevailing wage or the employer's actual wage, whichever is higher; pay for non-productive time in certain circumstances; and offer benefits on the same basis as for U.S. workers;
2. Provide working conditions for H-1B workers that will not adversely affect the working conditions of workers similarly employed;
3. Not employ an H-1B worker at a location where a strike or lockout in the occupational classification is occurring, and notify ETA of any future strike or lockout; and
4. On or within 30 days before the date the LCA is filed with ETA, provide notice of the employer's intent to hire H-1B workers. The employer must provide this notice to the bargaining representative of workers in the occupation in which the H-1B worker will be employed. If there is no bargaining representative, the employer must post such notices in conspicuous locations at the intended place(s) of employment, or provide them electronically.

How should LCA be filed?

LCAs must be submitted electronically via the Department's iCERT Portal System. The iCERT Portal System is available at: http://iCERT.doleta.gov. The only two exceptions for electronic filing are physical disability and lack of Internet access.

Employers submitting LCAs via the iCERT Portal System can expect a response within seven working days, unless there are obvious inaccuracies

How long is H-1B certification be valid? And how long can a foreign worker be in H-1B status?

The H-1B certification is valid for the period of employment indicated on the Labor Condition Application (LCA), specifically the Form ETA 9035E, for up to three years.

A foreign worker can be in H-1B status for a maximum continuous period of six years unless USCIS grants an extension. After the H-1B expires, the foreign worker must remain outside the U.S. for one year before another H-1B petition can be approved. Certain foreign workers with labor certification applications or immigrant visa petitions in process for extended periods may stay in H-1B status beyond the normal six-year limitation, in one-year increments.

What is number of new H-1B visas issued every year?

The number of new visas that can be issued each year is subject to a cap. H-1B visas are capped at 65,000 during a fiscal year; an additional 20,000 are available to those individuals who received a master's degree or higher from a U.S. institution of higher education.

What is “local prevailing wage“ of the first attestation in LCA (Labor Condition Application)?

The employer must pay the worker at least the same wage rate as paid to other employees with similar experience and qualifications or the local prevailing wage for the occupation in the area of employment, whichever is higher. The prevailing wage is defined as the average rate of wages paid to workers similarly employed in the area of intended employment. “Similarly employed“ is defined in this context as workers having substantially comparable jobs in the occupational classification in the area of intended employment.

Can my spouse and children join me if I obtain an H1-B visa?

Yes. A spouse or unmarried child of a person with H-1B visa status may obtain an H-4 visa. Individuals with H-4 visa status cannot work in the United States, but may attend school.

What is “actual wage“ of the first attestation in LCA?

The employer must pay the worker at least the same wage rate as paid to other employees with similar experience and qualifications or the local prevailing wage for the occupation in the area of employment, whichever is higher. The actual wage rate is the wage being paid to other individuals “with similar experience and qualifications for the specific employment in question.“ The DOL (U.S. Department of Labor) rules specify the factors for determining what constitutes “similar experience and qualifications“: experience, qualifications, education, job responsibility and function, specialized knowledge, and “other legitimate business factors“ such as professional distinctions, or receipt of international prizes.

What additional rules apply to employers who are dependent upon H-1B workers or are willful violators of the H-1B rules? And who are employers dependent upon H-1B workers?

An H-1B dependent employer is, generally, one whose H-1B workers comprise 15 percent or more of the employer's total workforce. Different thresholds apply to smaller employers. H-1B dependent employers who wish to hire only H-1B workers who are paid at least $60,000 per year or have a master's degree or higher in a specialty related to the employment, can be exempted from these additional rules.

H-1B dependent employers and willful violator employers must attest to the following three elements addressing non-displacement and recruitment of U.S. workers:

1. The employer will not displace any similarly employed U.S. worker within 90 days before or after applying for H-1B status, or an extension of status for any H-1B worker;
2. The employer will not place any H-1B worker employed pursuant to the LCA at the worksite of another employer unless the employer first makes a bona fide inquiry as to whether the other employer has displaced or intends to displace a similarly employed U.S. worker within 90 days before or after the placement of the H-1B worker; and
3. The employer, before applying for H-1B status for any foreign worker pursuant to an H-1B LCA, took good faith steps to recruit U.S. workers for the job for which the foreign worker is sought, at wages at least equal to those offered to the H-1B worker. Also, the employer will offer the job to any U.S. worker who applies and is equally or better qualified than the H-1B worker. This attestation does not apply if the H-1B worker is a “priority worker“

Who else is subject to the special rules?

The American Recovery and Reinvestment Act of 2009 requires all recipients of federal funds under Chapter 13 of the Federal Reserve Act or the Troubled Asset Relief Program of the Emergency Economic Stabilization Act of 2008 who want to hire H-1B workers to make the attestations required of an H-1B dependent employer that are listed above.

What are employer's responsibilities in H-1B program?

Each employer seeking an H-1B, H-1B1, or E-3 nonimmigrant has several responsibilities:

1. The employer shall submit a completed Labor Condition Application (LCA) on Form ETA 9035E or Form ETA 9035 (if special permission is granted) in the manner prescribed by the regulations. By completing and signing the LCA, the employer agrees to several attestations regarding an employer's responsibilities, including the wages and benefits and working conditions provided to US workers and the nonimmigrant workers.
2. The employer shall make the LCA and necessary supporting documentation available for public examination at the employer's principal place of business in the U.S. and/or the place of employment within one working day after the date on which the LCA is filed with ETA.
3. The employer may submit a copy of the approved LCA to U.S. Citizenship and Immigration Services (USCIS) with a completed petition (USCIS Form I-129) requesting H-1B or H-1B1 classification. For the E-3 visa, employers may or may not need to submit a petition to USCIS. Instead, foreign workers: (1) may apply for approval directly with a U.S. consulate; (2) pay a visa fee; and (3) are issued an I-94 entry/exit document at port of entry, to function as their work authorization.
4. The employer shall not allow the nonimmigrant worker to begin work until USCIS grants the worker authorization to work in the U.S. for that employer or, in the case of a nonimmigrant who is already in H-1B status and is changing employment, to another employer until the new employer files a petition supported by a certified LCA.
5. The employer shall maintain documentation to meet its burden of proof with respect to the validity of the statements made in its LCA and the accuracy of information provided, in the event that such statement or information is challenged. The employer shall also maintain such documentation at its principal place of business in the U.S. and shall make such documentation available to DOL for inspection and copying upon request.

How does an U.S. employer establish eligibility for an H-1B petition?

The H-1B regulations currently require that a United States employer establish that it has an employer-employee relation with respect to the beneficiary, as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee. In addition to demonstrating that a valid employer-employee relationship will exist between the petitioner and the beneficiary, the petitioner must continue to comply with all of the requirements for an H-1B petition including:

1. establishing that the beneficiary is coming to the United States temporarily to work in a specialty occupation;
2. demonstrating that the beneficiary is qualified to perform services in the specialty occupation; and
3. filing of a Labor Condition Application (LCA) specific to each location where the beneficiary will perform services.

What factors does USCIS consider when evaluating the employer-employee relationship?

USCIS will evaluate whether the petitioner has the “right to control“ the beneficiary's employment, such as when, where and how the beneficiary performs the job. Factors to be considered include the manner and extent to which the petitioner actually supervises the beneficiary; the petitioner's right to control the beneficiary's daily work and work product; and the petitioner's right to hire, pay, and fire the beneficiary. Adjudicators will review the totality of the circumstances when making a determination as to whether the employer-employee relationship exists.

What types of evidence can an employer provide to demonstrate that I have a valid employer-employee relationship with the beneficiary?

Petitioners will need to provide detailed documentation of the employment relationship. Particularly in cases in which the beneficiary will be assigned to third-party (client) worksites, employers will need to carefully document that it, and not the client, will have the right to supervise, direct, and review the foreign national's work and terminate his or her employment. A detailed itinerary providing information on the multiple work locations will also need to be attached.

What if an employer cannot submit the evidence listed in the memorandum?

The documents listed in the memorandum are only examples of evidence that establish the petitioner's right to control the beneficiary's employment. Unless a document is required by the regulations, i.e. an itinerary, a petitioner may provide similarly probative documents. A petitioner may submit a combination of any documents that sufficiently establish that the required relationship between the petitioner and the beneficiary exists. A petitioner should explain how the documents the petitioner is providing establish the relationship. Adjudicators will review and weigh all the evidence submitted to determine whether a qualifying employer-employee relationship has been established.

What are employee's rights in H-1B program?

H-1B workers are granted the following:

1. The employer must give the worker a copy of the LCA.
2. The employer must pay the worker at least the same wage rate as paid to other employees with similar experience and qualifications or the local prevailing wage for the occupation in the area of employment, whichever is higher.
3. The employer must pay for non-productive time caused by the employer or by the worker's lack of a license or permit.
4. The employer must offer the worker fringe benefits on the same basis as its other employees.
5. The employer may not require the worker to pay a penalty for leaving employment prior to any agreed date. However, this restriction does not preclude the employer from seeking “liquidated damages“ pursuant to relevant state law. Liquidated damages are generally estimates stated in a contract of the anticipated damages to the employer caused by the worker's breach of contract.

What if I get fired before my H1-B visa is expired?

H-1B workers who lose their jobs must either find another employer to petition on their behalf, change to a different immigration status or return to their home country.

I am in H-1B visa status, and my employer has begun the permanent residency process. Will I have any problems renewing my H-1B visa or traveling internationally?

Generally not. An H-1B alien can be the beneficiary of a labor certification application, an immigrant visa petition, adjustment of status application, or take other steps toward Lawful Permanent Resident status without affecting H-1B status. U.S. immigration law allows for dual intent for those in H-1B status. This means that a person may remain in nonimmigrant H-1B status, even though the person intends to become a permanent resident. While the application for permanent residency is pending, you may continue to travel and work in H-1B visa status.