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The H-1B Visa Category: A Powerful Recruitment Tool for Human Resource Departments

By John C. Valdez, Attorney at Fontes Figueroa Law Group

Serving clients in Orange County, Riverside County, and surrounding areas.

There are many visa categories available for hiring a highly qualified professional worker, but one of the best is the H-1B visa. This article provides basic information about a visa classification that is arguably the most popular one used by U.S. companies. It also attempts to answer some of the most common questions Human Resource personnel and hiring managers have about the H-1B classification.

What positions qualify for H-1B classification?
The regulations says that an H-1B position is one that requires the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s or higher degree (or its equivalent) as a minimum for entry into the occupation. What does this technical language mean? It means that an H-1B position is one that normally requires a specific bachelor’s degree. The position may require a degree in one of two or three different fields, but if too many bachelor’s degrees can satisfy the minimum educational criteria, the government will not find the position is specialized enough for the visa category. Some occupations are designated as appropriate for H-1B classification by statute. These occupations include engineers, lawyers, and teachers. Other occupations commonly found to be H-1B occupations include many computer specialists, accountants, architects, economists, market researchers, executives, and financial analysts.

Who is qualified for H-1B classification?
To qualify for a specialty occupation position, the applicant normally must possess the degree required for the position. If the applicant does not possess the required degree, he or she may still qualify for the position based on experience that is equivalent to the completion of the required degree. If the applicant possesses a foreign degree, the applicant must prove that the foreign degree is equivalent to a U.S. degree. This equivalency can be established if a qualified expert provides an evaluation showing that the foreign degree is equal to a U.S. degree as awarded by U.S. universities. If a state license is required to perform duties in the specialty occupation, the applicant normally must possess this license at the time the petition is filed.

Is there any limitation on the number of H-1B visas that can be issued?
Yes. Currently, new H-1B petition approvals are capped at 65,000 annually. Of those 65,000, 6,800 are reserved for nationals of Chile and Singapore. 20,000 H-1B visas are exempt from the cap and reserved for beneficiaries with a U.S. masters degree or higher.

There are cases that are not subject to the H-1B cap. For example, petitions are exempt from the cap if the worker will be employed at defined institutions of higher education, related or affiliated nonprofit entities, or nonprofit research organizations or governmental research organizations. Petitions for an extension of H-1B status, a change of H-1B employer, or an amendment of the terms of H-1B employment are also not subject to the H-1B cap.

Are there any specific rules an employer must follow when employing an H-1B worker?
There are many compliance rules involving H-1B employment, and the employer must make certain attestations on a labor condition application (LCA), a document that binds the employer to certain conditions of H-1B employment. For example, the employer must agree to:

  • • Pay at least the prevailing wage for the occupation in the area of employment;
  • • Pay at least the actual wage paid by the employer to all other workers with similar experience and
       qualifications for the specific employment at the place of employment;
  • • Promise that the working conditions for the H-1B worker will not adversely affect other similarly
       employed workers;
  • • Attest that there is no strike or lockout in the occupational classification at the place of employment
       when filing the H-1B petition; and
  • • Provide notice of the filing of the LCA to the bargaining representative of the applicable union,
       if there is one. If there is no union, the employer must post notice of the filing of the LCA in 2 or more
       conspicuous locations for at least 10 days at the work place.

Employers and employees must take care to see that the terms of an H-1B petition are strictly observed. Prior to making any change regarding the conditions of H-1B employment, including a change of position, duties, location of work, or reduction in hours or pay, employers should consult with counsel.

Can an H-1B worker change employers?
An H-1B worker can change employers if all of the rules are correctly followed. The American Competitiveness in the Twenty-First Century Act of 2000 (AC-21) created new rules that make it easier for H-1B workers to change employers. Pursuant to AC-21, an H-1B worker can change employers as soon as the new employer files a nonfrivolous H-1B petition, rather than waiting for the petition to be approved, if:

  • • The H-1B worker was lawfully admitted to the U.S.;
  • • The new petition was filed before the expiration of the H-1B workers’ period of authorized stay; and
  • • The H-1B worker has not been employed without authorization since being admitted to the U.S.,
       and before the filing of the nonfrivolous petition.

Of course, the H-1B worker also has the option to wait for the government to approve the petition before changing employers.

Can an H-1B worker apply for U.S. Permanent Residence?
Yes. Most nonimmigrants must overcome a presumption that they intent to reside permanently in the U.S. before they may be issued a nonimmigrant visa. H-1B workers do not need to meet this requirement because they are allowed to have “dual intent.” Dual intent is a concept under the immigration laws that permit some foreign nationals, including H-1B workers, to come to the U.S. on a nonimmingrant visa while intending to seek U.S. permanent residence. Therefore, an H-1B worker may apply for an immigrant visa without threatening his or her nonimmigrant status or ability to obtain an extension of nonimmigrant H-1B status.

How long may a person remain in H-1B classification?
Generally, a worker may only remain in the United States in H-1B classification for six years. After six years, the worker must leave the U.S. for at least one year before becoming eligible for additional H-1B time.

There are some exceptions to the six year rule. For example, pursuant to AC-21 section 106(a), an extension of H-1B status may be granted in one year increments, resulting in more than six years of H-1B status, if the following conditions are met:

  • • A labor certification application or employment-based immigrant visa petition was filed on behalf of the
       H-1B worker. If a labor certification is the basis for the extension, it must not be expired, revoked, or,
       through a final decision, denied;
  • • The labor certification application or immigrant visa petition was filed at least 365 days prior to the date
       the H-1B worker will have exhausted six years of H-1B status in the United States; and
  • • The extension request and I-129 petition are otherwise approvable.

Also, a person can be granted more than six years of H-1B status under AC-21 section 104(c), which permits an H-1B worker to apply for extensions of H-1B classification in three year increments if:

  • • The H-1B worker is the beneficiary of an approved I-140 petition; and
  • • Is eligible for to be granted adjustment of status but for the unavailability of an immigrant visa
       under the per country visa caps, as posted by the Department of State.

What happens if an H-1B employee is suddenly terminated?
H-1B classification is a visa category that is employer specific, which means maintenance of the person’s status depends upon the worker remaining employed by the sponsoring employer. Unfortunately, the USCIS does not offer a grace period for H-1B workers that are suddenly terminated. Technically, a terminated H-1B worker has no legal status once the employment relationship ends. The government does have discretion, however, to grant a change of employer H-1B petition. The USCIS may exercise this discretion if the H-1B worker very quickly finds a new employer, the loss of status was not the fault of the worker, and the worker has always properly observed the immigration laws. These types of cases are difficult and should be handled by a well-qualified immigration attorney.

What paperwork must an employer keep if it employs H-1B workers?
There are many H-1B compliance rules that require employers to preserve documents. For example, the Department of Labor regulations require employers to maintain a “Public Access Folder” for each H-1B worker. An employer is required to make this folder available to any interested party, upon request, within one working day. The Public Access Folder generally should contain the following:

  • • A copy of the certified labor condition application;
  • • Statement identifying the two required labor condition application posting locations and dates of posting
       or confirming notification to the applicable union;
  • • Actual wage memorandum which clearly explains the system used to set the actual wage to be paid
       to the H-1B worker;
  • • Copies of the documentation used to establish the prevailing wage for the H-1B position;
  • • A summary of the benefits offered to U.S. workers in the same occupational classification
       as the H-1B worker and an explanation of any differentiation in offered benefits; and
  • • A statement confirming that the H-1B worker received a copy of the approved LCA.

What do the immigration laws say about the H-1B worker’s family members?
The H-1B worker’s spouse and children are entitled to H-4 nonimmigrant status. H-4 nonimmigrants are permitted to remain in the U.S. as long as the principal remains in H-1B classification. H-4 nonimmigrants are not permitted to work, but they may attend school. Also, H-4 nonimmigrants, like H-1B workers, are permitted “dual intent.” Therefore, H-4 nonimmigrants may apply for an immigrant visa without threatening their nonimmigrant status or ability to obtain an extension of nonimmigrant H-4 status.

Although the H-1B category can greatly help companies find specialized workers for hard to fill positions, it does involve complicated sets of legal requirements; thus, employers should use a qualified immigration firm when hiring H-1B workers. The timing for submission of H-1B cases is extremely important, since these visas are not available year round because of the numerical limitations on the category. Therefore, it is recommended that employers seek general advice on the procedures, requirements, and obligations involving the H-1B category well in advance of hiring H-1B personnel.