This is an introductory outline of the eligibility requirements, as well as the documents needed and filing procedures for the most common nonimmigrant visa category available for work in the U.S.
A U.S. employer can obtain an H-1B professional work visa, for a period of up to three years at a time (a maximum of six years total consecutive time is allowed in the U.S.) for any foreign worker who holds an appropriate degree for that professional job. The employer must offer a wage to the alien at or above the prevailing wage for U.S. workers employed in that geographic area in similar jobs, and the appropriateness of the wage to the offered job and location is confirmed with the Department of Labor through the filing of a "Labor Condition Application." The LCA process certifies that the alien is not being underpaid for the job in question, and thus prevents U.S. professionals from being undercut by cheaper foreign labor, and also protects foreign workers against exploitation by employers.
The immigration law defines a professional job as one that requires a related 4-year Bachelor’s degree in the specialty, or its equivalent through combined education and experience, as a minimum for entry-level employment in that occupation. Other nuances of whether the job offered is deemed "professional" by the immigration service should be discussed with counsel. We begin by describing the company, the department or program, and specific duties of the job offered, and the foreign worker’s credentials. Foreign degrees must be evaluated by a U.S.-based credentials evaluation service to determine whether they are equivalent to a bachelor's degree or higher in the U.S. Evaluation is not an issue where the alien has a U.S. baccalaureate or graduate degree that is directly related to the job issued by a U.S. University. In order to prepare and to file an H-1B visa petition for a nonimmigrant worker, we need copies of his or her credentials, including any diplomas and transcripts, as well as licenses for any job where licensure is required.
The Labor Attestation
The U.S. employer, through counsel, files a labor condition application or "LCA" with the Department of Labor, to certify that the offered wage is appropriate for the position, i.e. that the employer is not offering the job to a foreign worker at a lower wage than U.S. workers are paid for comparable jobs in that area.
Then, a petition for H-1B visa status is filed with U.S. Citizenship & Immigration Services. It includes a letter and petition forms completed by the employer, the certified LCA, the foreign worker's educational credentials, and documents describing the employer’s business, such as a brochure or annual report – Additional documents may be needed for certain types of petitioners. If there is a request for a change or extension of status, then evidence of the alien’s maintenance of his current visa status must also be attached. This also applies to dependent family members in the U.S.
Critical Issues of Timing
Timing should be discussed with counsel, as immigration processing varies throughout the year and is often subject to lengthy and unpredictable delays. Also, there may be issues pertaining to the H-1B "cap": If the total number of new H-1B visas allotted for the fiscal year runs out, then any petition for someone who does not already hold H visa status must be filed for the next fiscal year, which begins October 1. There can be long periods where no H-1Bs are currently available. Universities, non-profit educational and research institutions are exempt from this rule.
Filing the Petition
A petition for H-1B status can either be a "straight" petition, which requires an individual to go to a U.S. Consulate abroad and apply for the H-1 visa before they can enter the U.S. to begin work, or it can include an application to change the person’s visa status if they are already in the U.S.* A change of status can be requested where the person can prove that he or she is currently maintaining valid visa status, and a straight petition can be filed regardless of whether the person is presently in the U.S. – this is a strategic choice that should be discussed with counsel, as other issues come into play (family dependents, travel requirements, type of visa on which the alien entered the country, a ny prior status violations, etc.). *Aliens visiting the U.S. without a visa stamp under the Visa Waiver Program, who are issued green I-94 admission cards, cannot change status or extend their stay.
When the petition includes a request for change of status for an F-1 student, it must be filed with evidence including copies of a current Form I-94 showing the student’s last admission to the U.S., a current Form I-20 from the school, and either evidence of registration for the current semester, or evidence of currently valid Optional Practical Training, with a valid work authorization card. Students who are planning to accept a new job fresh out of an undergraduate or graduate program in the U.S. should discuss this with the Designated School Official (who is responsible for signing Forms I-20 on behalf of the school) well before the end of their last semester, and should request a year of authorized post-completion practical training, if it is available. OPT cannot be authorized once a course of study is completed, and it typically takes Citizenship & Immigration Services several months to process the application for a work authorization card, so planning ahead is essential.
The H-1B Wage Requirement
The employer is undertaking a legal obligation to pay the H-1B worker the offered wage, which must be at least 100% of the prevailing wage for that occupation in that geographic area where the job is located. The employer is obligated to treat the H-1B worker as an employee, and to withhold the appropriate payroll taxes (FICA, SSI, SUI, and all federal, state and local income taxes) for a fixed period of time stated in the petition, although the job offer can be withdrawn at any time. The H-1B employer must document that the alien is paid that wage and is offered the same benefits as those offered to U.S. workers. An H-1B employer also undertakes an obligation to pay return airfare to the worker’s home country abroad if the employer terminates the worker during validity of the H-1B visa petition. Thus, the financial ability of the employer to pay the wage is at issue, and the government may therefore request evidence of the company’s financial standing, such as tax returns. A new company will be subject to closer scrutiny, as CIS regards job offers from start-up companies with skepticism: they may question whether a new entity will survive for the 3-year period and will be able to sustain the ability to employ a professional worker for that length of time. When determining whether a job offer from a start-up company is bona fide and whether that company will be able to remain in business and employ the professional worker for a three-year period, CIS will usually look to factors such as a lease for commercial space, documents showing a current income stream, signed contracts, number of current employees, business checking account statements, etc. and ongoing ability to meet payroll.
Owing to recent amendments to the law, in addition to regular petition filing fees, any new employer of an H-1B worker must pay a fraud-prevention fee of $500, and most employers will have to pay a fee to support training programs for U.S. workers, which is $1,500 for most companies, but is reduced to $750 for companies with 25 or fewer employees. Certain non-profit research and educational institutions that are exempt from the numerical H-1B cap are also exempt from the U.S. worker training fee.
If enabling the alien to begin work as soon as possible is a top priority, or the alien has a short-term need to travel abroad, or there is some question as to whether the numerical H-1B cap for the current year may be reached soon, the employer may wish to consider "Premium Processing." This service entails an additional $1,000 fee, but is often well worth it, as Premium cases are guaranteed initial review within fifteen calendar days. Premium Processing may not be needed where the alien worker already holds H1B status with a different employer, and has no need to travel abroad, or holds F-1 status and a valid Employment Authorization Document.
H-1B Worker Portability
For foreign workers who already hold H-1B visa status and wish to change employers, there is a provision in the law permitting H-1B "portability." This allows workers already in the U.S. who are maintaining valid H-1B visa status to switch employers more efficaciously. An H-1B nonimmigrant may start work with a new employer once that new employer has filed a petition with CIS, with the certified LCA and with proof that the H-1B worker is currently maintaining valid H-1B status at the previously-approved employer (i.e., current paystubs). However, this period of employment under "portability" between the date of filing and when the petition is adjudicated , which may be several months, will retroactively be deemed unauthorized unemployment if that petition is subsequently denied. If there are any questions about the strength or viability of the new petition, it is prudent for the second employer to wait and hire the H-1B worker after the petition is approved. The decision to begin employing an individual under the H-1B portability provision should be discussed with counsel.
Advice of Counsel
This memo is meant to furnish information to firms and individuals considering H-1B processing and is not intended to substitute for advice of counsel. Feel free to consult our office for legal advice on H-1B and other Visa classifications.