H-1B Visa Program

For thousands of American employers, the H-1B visa program is the primary method for bringing in professional level foreign employees. The visa has been the subject of considerable media attention in recent years because Congress has set limits on the numbers of workers allowed in on H-1B visas and employers have, with some success, pushed for increasing the cap in order to keep up with the demands of a hot economy.

The H-1B visa allows workers in specialty occupations - areas that normally require a college degree - to work in the US for up to a total of six years. One of the things that makes this visa so desirable is that, unlike many other nonimmigrant visa categories, it is a "dual intent" visa. This means that a visa will not be denied simply because a person has intentions to become a permanent resident. The assumption is that if for some reason the permanent residency petition is denied, the person would still have the intention to return home. Thus, assuming the applicant meets all of the statutory requirements for the H-1B visa, the main reason it would be denied is if the consular officer feels there is good reason to believe the applicant will not comply with the terms of the visa (such as having a history of failing to comply with the terms of a visa). There is annual limit of 65,000 visas under the Immigration Act of 1998. In 1998, Congress temporarily raised the limit to Under a temporary hike in the visa cap, the current limit is 115,000.

Another advantage to the H-1B category is that the employer does not need to demonstrate that there is a shortage of qualified US workers and, consequently, a labor certification process can be avoided. Aside from documenting that the position offered is in a specialty occupation and that the employee has the appropriate credentials for the job, the employer need only verify that the H-1B worker is being paid the prevailing wage for the work being performed and that employment of a foreign worker is not harming conditions for US workers.

STEPS TO OBTAINING AN H-1B VISA
In an H-1B visa application, the US employer is called the petitioner and the foreign worker is called the beneficiary. After an offer of employment is made, the petition process begins. The first step is for the petitioner to ensure that the worker will be paid at least 95% of the prevailing wage paid to similarly employed workers in the geographic area where the beneficiary will be employed. The employer must also be sure that it is not paying less than the actual wage paid to its other employees with similar qualifications. The prevailing wage can be determined through a private wage survey or through a state Employment Security Agency. The benefit of relying on a state wage determination is that it cannot be challenged later by the US Department of Labor. On the other hand, state determinations are frequently not a close match to the job performed and are slow in being issued.

Once the wage information has been obtained, a Form ETA 9035 Labor Condition Application (LCA) must be submitted to the US Department of Labor. On this form, the employer must submit the wage to be paid, the prevailing wage, and must make certain attestations. The form is typically submitted by fax and the Department of Labor only reviews the form to make sure it is properly completed. It does not look to see whether the information is accurate and instead investigates a small percentage of cases where violations of the regulations appear to be occurring.

When the LCA form is returned to the petitioner, it is to be submitted to the INS as part of the H-1B petition package. Other information that should be included in the INS petition includes documentation of the beneficiary's qualifications, the petitioner's type of business, and the type of work the beneficiary will be performing. Each of these will be further detailed below.

THE LABOR CONDITION APPLICATION
The requirement of a LCA was imposed in the 1990 Immigration Act. It serves two related purposes - ensuring that US wages are not depressed by the hiring of foreign labor and that foreign workers are not exploited. On this document, the employer makes specific representations regarding the conditions under which the foreign worker was hired and will be employed. These attestations are as follows:

• The employer will pay the required wage, which is the greater of the prevailing wage or the actual wage paid to other employees in the same position
• The employment of H-1B workers will not adversely effect the working conditions of US workers
• When the LCA was filed, there was no strike, lockout or other work stoppage because of a labor dispute
• The H-1B worker will be given a copy of the LCA, and the employer has notified the bargaining representative if the job is unionized, or if not, has posted in a conspicuous place notice that an LCA was filed.

A few new requirements were added in 1998, when the annual H-1B cap was raised. However, these requirements apply only to "H-1B dependent" employers, a concept also created in 1998. Whether an employer is H-1B dependent depends on the following guidelines:

• If the employer has over 50 employees, the employer is H-1B dependent if at least 15% of the workforce is comprised of H-1B visa holders
• If the employer has 26-50 employees, the employer is H-1B dependent if it employs more than 12 H-1B workers
• If the employer has 25 or fewer employees, the employer is H-1B dependent if it employs more than seven H-1B workers

While in most cases the new requirements apply only to H-1B dependent employers, they also apply to employers who have been found to have committed a willful failure or misrepresentation with regard to any attestation made on the LCA. Also, H-1B dependent employers are not subject to the new requirements when they are filing an LCA that covers only "exempt" H-1B workers. Exempt workers are those who are paid at least $60,000 annually or who have obtained a master's degree or higher in a field related to the intended employment. If the employer is H-1B dependent, it must comply with these requirements:

• The employer must attest (swear under oath) that it has not and will not "displace" a US worker during the period from 90 days before the H-1B petition is filed until 90 days after it has been filed.
• The employer must attest that it has taken "good faith steps" to recruit US workers for the job, and that they have offered it to any US worker who applied that was at least as qualified as the H-1B nonimmigrant.

Once the LCA has been filled in, it is submitted to the Department of Labor (DOL). Under the 1990 law, the DOL is supposed to certify the LCA within seven days of submission, but there is little way to enforce this. The reality is that even with a new automated faxback system, the Department of Labor still frequently takes more (sometimes much more) than seven days to certify an LCA.

Within one business day of filing the LCA, the employer must establish a public access file that may be viewed by any person. This file must include a copy of the LCA, a statement of the actual wage received by the H-1B worker, the prevailing wage, including its source, whether the state or a private survey is used, a memo from the employer explaining the actual wage determination, and evidence that the LCA has been filed.

In addition, the employer must keep other information that need not be made available to the public. This includes payroll data for all employees in the same occupations as the H-1B worker, a calculation of the actual wage paid the H-1B worker, the raw data behind the prevailing wage determination, documentation of any fringe benefits provided workers, and evidence that the H-1B worker has been given a copy of the LCA.

Once approved, an LCA is valid for three years.

THE INS PETITION

Obtaining an LCA is only the first step in the H-1B process. The application for an H-1B visa must present evidence that will convince the INS of three basic truths:

• The employer has a legitimate need for a "specialty occupation worker"
• The position offered is in a "specialty occupation"
• The prospective employee is qualified for the position.

1. The employer's need
This is often the easiest aspect of an H-1B petition to demonstrate. As a general rule large and well-known businesses do not have much difficulty in showing they have a need for an H-1B worker. Problems can be encountered if the employer is small, or if the business was recently started. In such cases the INS has requested evidence relating to the stability of the business, such as tax returns and payroll records. Court decisions have, in the past, said the INS is not supposed to examine the financial background of a company. However, the INS routinely asks for such documentation even for many large employers.

2. The nature of the position
Demonstrating that a position is in a specialty occupation is quite easy with some jobs, such as lawyers, accountants, engineers and professors. With many positions, however, it is not so simple. In these situations, the application must carefully define and describe the job. Two volumes published by the Department of Labor are helpful in this area. They are the Dictionary of Occupational Titles and the Occupational Outlook Handbook. The Dictionary of Occupational Titles contains a list of job titles and lists job duties that are associated with each. The Occupational Outlook Handbook lists general educational requirements for entry into certain areas of employment, but often it deals with such broad fields that it is of limited usefulness. While the books are helpful in documenting a case, neither is binding on the INS and the use of the publication should always be used with caution.

In cases where the specialty nature of the position is not evident, many types of evidence may be used. Trade and association publications may be presented. Petitioners may also procure affidavits from authorities in the field. Such an affidavit would be especially useful if written by someone who has personally observed the workplace and the position's role in it. One of the best types of evidence is the employer's own hiring practice in hiring for the position. Evidence of the minimum qualifications required for positions below that for which an H-1B worker is sought can also be helpful, especially if such people are required to have a university degree.

If the occupation is little known or is relatively new, extensive documentation will be required to convince the INS of the need for an H-1B worker. In these cases appropriate evidence would include affidavits from other employers in the field and professional organizations in the field.

3. The alien's qualificationsTo qualify as a specialty occupation, the position must require at least a bachelor's degree or its equivalent. Therefore, one of the most important parts of an H-1B case is documenting the alien's education and/or experience. A diploma may be submitted if it indicates the alien's field of study and that field is relevant to the position sought. If this is not the case, transcripts should also be submitted. If the relevance of the subjects studied is not apparent, course descriptions from the school catalog may be included. If the alien did not attend school in the US, their degree must be evaluated by a credentials evaluation service to ensure it is at least equal to a US bachelor's degree. Note that if the alien attended college abroad, and then obtained an advanced degree in the US, no evaluation of their undergraduate degree is required because it is presumed that the US graduate institution would not have admitted the student without at least possessing the equivalent of a bachelor's degree.

While possession of a degree is the most common way of establishing a person's ability to work in a specialty occupation, a degree is not required to obtain an H-1B visa. The applicant can demonstrate through work experience or a combination of education and experience that they have the equivalent of a bachelor's degree. If work experience will be used, the INS requires affidavits from former employers outlining the alien's responsibilities and skills learned while there. Under INS rules, three years of work experience is equal to one year in college.

If there are any additional requirements that the alien must meet to take the position offered, documentation that these requirements are met must be submitted. An example would be when a license is required by the state in which the alien will be working.

FEES
The INS and the State Department charge various fees at the time an H-1B petition is submitted as well as at the time a visa is issued at the consulate. The INS charges a base fee of $110 as well as $500 for worker retraining. The $500 fee must be paid by the employer, though certain petitioners can avoid paying. Universities as well as certain research institutions can submit a form I-129W requesting the exemption. The consulate will also charge an application fee and a fee to issue a machine readable visa.

EXTENSIONS OF STAY
The maximum authorized stay in the US in H-1B status is six years. Because the initial petition is valid for a maximum of only three years, most H-1B visa holders will want to extend their visa. If there have been no changes in the conditions of employment, this is a relatively simple process. All that needs to be submitted are the appropriate forms and a new LCA. In such circumstances, the INS' principle concern is the amount of time the H-1B visa holder has spent in the US in H-1B status.

CHANGING EMPLOYMENT AND ADDING EMPLOYERS
H-1B employees may apply for a change of status from one employer to another. The application process is fairly similar to applying for a brand new H-1B except that the process can be completed in the US without a trip abroad to a US consulate. H-1B employees may also work for more than one employer at the same time as long as a separate H-1B approval notice is obtained for each employer

One of the easiest ways for an H-1B visa holder to run into trouble with his or her visa status is to fail to comply with immigration regulations when switching employers or changing the terms of his or her employment.

The most difficult problems are often created when someone changes jobs without taking care of immigration issues. In fields like computer programming or physical therapy, it is not unusual for an individual to move frequently from employer to employer. But for an H-1B visa holder, each change can present challenges.

The first basic rule to note is that an H-1B is employer specific. In other words, it is only valid for the petitioning employer and only entitles the recipient to work for the employer approved by the INS. That means that each time a worker moves to a new employer, a new H-1B approval is required. It is possible to apply for a change of status to switch employers from the US without having to leave and get a new visa stamp, however. But it is important to remember that the process involved will be pretty similar to getting an H-1B visa from scratch.

At one time, it was thought that changing H-1B employers meant that a new visa stamp would be needed the next time someone leaves and reenters after a change of status in the US. The INS and State Department now make it clear that as long as the visa remains unexpired the applicant remains in H-1B classification. Note that someone who changed from another visa to H-1B status in the US (such as from F-1 to H-1B) and never has had a visa stamp will still need to get an H-1B visa at a consulate.

Whether the applicant for a change of status can work for the new employer while the application is pending is a question with no clear answer. More than 20 years ago, the courts said that work for a new employer while a change of status application was legal. However, the INS has never agreed to this and takes the position that such work is illegal. Consequently, many immigration lawyers take a conservative view on this and tell their clients not to start work for the new employer until the change of status is approved.

What about the H-1B cap when a change of status is requested? The INS has stated that the limit on the number of H-1B visas does not apply in this situation. However, if one leaves an employer and waits more than 30 days to apply for a new H-1B visa, the cap would apply again.

Also, the new H-1B $500 worker retraining fee would be due once again for a new employer (assuming the new employer is not otherwise exempt from the fee).

What if you change employers and then decide to go back to the first employer? The news here is good. The H-1B petition continues to remain valid until it expires or until the employer has it revoked. The INS takes the position that if neither of the above has occurred, one can resume work for the first employer without filing a new petition or an amendment.

Another common question is what to do when several employers file H-1Bs for a worker. Let's say that two employers successfully file an H-1B and the worker enters to work for Company 1. After coming here, the worker decides to go work for Company 2 instead. Even if the worker never worked before for Company 2, the worker can switch to Company 2 without the need for a new petition. As noted above, a revocation of the petition by Company 2 or the expiration of the visa approval period for Company 2 would mean a new petition is required.

What about the case where an employee accepts a job with a second employer without giving up the first position? There is no legal reason why this cannot take place. An H-1B worker can work for several employers simultaneously if desired. However, each employer must have a separate approval for the worker to work there. Also, the INS does not recognize "co-employer" arrangements so if this is the case either one employer must designate itself as the petitioner or each employer must file a separate petition.

There are many times when a change in the nature of one's employment will trigger the need to file either an amendment to an H-1B petition or a completely new petition. The INS position is that if the change in employment is "material" then an amendment must be filed. So, for example, if there is a significant change in job duties, then a new petition will probably be necessary. Also, being transferred to a different legal entity within the same corporation would trigger an amendment. Also, in certain cases, changing job locations could require an amendment.

Mere changes in job titles without a serious change in job duties will probably not require an amendment. The same holds true for raises in salary unless the change is so great that the INS presumes that the position is really a new one.

Note that changes in the corporate structure of a company could mean that a new H-1B petition must be filed. The general rule is that if a new legal entity is created, a new petition is required. This would be the case, for example, if a company is sold and the new company dissolves the old company without assuming its liabilities. A merger that results in the creation of a new company might also mean that new petitions should be filed. If the new company is what in corporate law is called a "successor in interest" then a new petition is normally not necessary. Changes in a company's name will not trigger the need for an amendment or a refiling, but an amendment is useful in order to avoid confusion when the worker reenters the country later on. As the issues here are quite complex, it is best to consult with an immigration law with a corporate law background or an immigration lawyer who can check with corporate counsel in order to determine how an H-1B petition is affected. Before the ink even dries on a corporate closing document, all of a firm's visa holders can be rendered illegal aliens if these issues are not explored first.