The H-1B visa category applies to foreign nationals who are being sent to the U.S. to temporarily perform work for their employer in a specialty occupation. Specialty occupations are jobs that require:

• Theoretical and practical application of a body of highly specialized knowledge, and
• A bachelor’s or higher degree in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States

In general, the maximum amount of stay allowed under the H-1B visa is 6 years. Foreign nationals can extend for up to 3 years at a time. Any time on a prior H or L-visa is counted toward this 6 year maximum. Additionally, this visa category requires a petitioning employer to attest to certain requirements related to:

• Employment
• Recruitment
• Compliance

The employer must generally file a Labor Condition Application for each employee with the Department of Labor. The employer must also maintain a Public Access File, typically at their principal place of business.

H-1B QUOTA: HOW IT WORKS

The H-1B visa is subject to an annual quota. Currently, the U.S. government has capped these visas at 65,000 per fiscal year. Online registration for H-1B visas will begin for the first time on March 1, 2020. At this time, employers and attorneys can begin to register each H-1B beneficiary online. Employers will only need to file completed petitions for beneficiaries that are selected in the lottery. The earliest employment start date of any cap-subject petition is October 1. No earlier is permitted. It is anticipated that there will be more online registrations each year than there are spots available For this reason, H-1B visas are assigned to foreign nationals by using a lottery-based process of random selection. Out of the 65,000 visa numbers available:

• 6,800 H-1B1 visas are reserved for nationals of: Chile (1,400) and Singapore (5,400)
• The remaining 58,200 visa numbers are available for citizens of all countries

Any unusued H-1B1 visa numbers can be used for H-1B visas in the following fiscal year.

QUOTA EXEMPTIONS

The first 20,000 petitions received where the H-1B applicant has a Master’s Degree or higher are exempt from the 65,000 visa cap. Employers must specifically request this exemption from the cap on the basis of the foreign national’s degree. After the 20,000 cap has been reached for this category, advanced degree holders are counted against the overall cap. Some petitioning employers may be exempt from the H-1B quota, including certain:

• University or educational institutions
• Non-profit arms of universities or government organizations hiring researchers

Please ask us for more information if you fall into this category and are interested in exploring immigration visa options.

ELIGIBILITY FOR H-1B VISAS

Eligibility requirements vary based on the specific type of H-1B visa. The H-1 category also includes US Department of Defense (DOD) researchers and development project workers (H-1B2) and fashion models of high merit and ability (H-1B3). Foreign nationals may apply for H-1B if they have not been previously accepted or counted as part of the H-1B quota in the last 6 years.

US BACHELOR'S DEGREE MINIMUM

The U.S. position must require the equivalent of a U.S. Bachelor’s degree at minimum, which is normally required for the position or entry into a particular industry. A foreign degree is typically evaluated for its US equivalency, so applicants will need to provide clear copies of degree(s) and mark sheets or academic transcripts. If the foreign national does not have enough years of education or their degree is not directly related to the position, he or she may still be able to meet this equivalency with a combination of education and experience. An experienced immigration attorney can analyze the candidate’s profile and determine whether an exception is likely to be granted. The employee will need to provide a resume and experience letters. Alternatively, the job position and duties must be so complex or specialized that it can be performed only by an individual with a degree. An immigration attorney can help analyze the nature of the job duties before proceeding with the application. In all of the above scenarios, it will be necessary to provide evidence of the employee’s educational and experience background to qualify under this visa category.

SPECIALTY OCCUPATION WORK MUST BE AVAILABLE

There must be specialty occupation work available to the H-1B employee for the employment period that is being requested on the petition. Employers can provide documentation like project agreements and contracts or customer letters, especially if working for a customer or at a customer location. If an employment period of 3 years is being requested for approval, but an employer submits documents that show a shorter project timeline, this may lead to the US government approving the petition for a shortened validity period. Documentation that does not precisely discuss the work to be done may also be questioned by the US government. It is crucial to provide evidence of the project’s existence and duration to demonstrate that the employee is needed for the period of stay indicated in the petition.

EMPLOYER HAS THE RIGHT TO CONTROL H-1B HOLDER'S EMPLOYMENT

If an H-1B worker is being sent to a customer’s job site to work on a project on behalf of the employer, the employer will need to provide additional documentation regarding its right to control and supervise their employee at that work location. Evidence will need to demonstrate that the employer will retain the right to control the worker’s employment during this period. This may include, but not be limited to, supervising, hiring, firing, assigning, and paying the salary. Typically, the US manager, US authorized representative, or Human Resources can furnish necessary documentation.

VALID NONIMMIGRANT STATUS AT THE TIME OF FILING

The beneficiary must retain valid nonimmigrant status at the time of filing the visa petition if they are currently in the United States. They must also have maintained nonimmigrant status at all times while in the United States. Documentation will be required to demonstrate this at the time of filing the petition.

APPLICATION PROCESS

LABOR CONDITION APPLICATIONS & PREVAILING WAGES

The employer must file a Labor Condition Application to petition for their foreign national employee’s H-1B visa. Not to be confused with Labor Certification for green cards, the LCA is a way for employers to prove fair working conditions. In the LCA, the employer must attest that they will pay their H-1B worker the prevailing wage recommended by the US Department of Labor. This means the wages paid to the H-1B must be equal to the greater of the two:

• Wages paid to employees in the same company that have similar qualifications and experience
• Prevailing wage in the occupation for similar positions

The prevailing wage requirements are designed to protect both local US workers and foreign workers. Additionally, the LCA must also contain an attestation from the employer about working conditions.

POSTING AND FILING REQUIREMENTS FOR LCA

The employer must post an LCA notice at the job site including the job title, and salary. This can be done by either:

• A ten day posting of the LCA in a conspicuous place at the workplace
• An electronic notification to other employees in the same occupation

The employer will also need to make sure they provide a copy of the LCA to the H-1B employee on or before their start date.

FORM I-129: PETITION FOR A NONIMMIGRANT WORKER

Once the employer receives a certified LCA back from the Department of Labor, they can file Form I-129 to request H-1B status for their employee. The employer must include all supporting documentation and filing fees. If the Form I-129 application is successful, the foreign national will receive Form I-797 which shows they have been approved. They can begin working immediately if they are already present in the United States on valid nonimmigrant status. Otherwise, if the employee is residing outside of the United States, they can apply with with their Form I-797 for an H-1B visa at a US consulate. Once they have an H-1B visa, the worker can enter the United States with a Form I-94 at a port of entry.

PUBLIC ACCESS FILE REQUIREMENTS

After the Form I-129 has been approved, the employer must also maintain a Public Access File (PAF) for the H-1B employee. Each PAF should contain the following documentation:

• The signed and certified LCA
• Documentation demonstrating the wage paid to the employee
• A clear explanation of how the prevailing wage was determined, and whether the prevailing wage provides for any salary increases
• A copy of documentation used by the employer to establish the prevailing wage
• Documents that show the employer has met the LCA workplace posting requirement
• Optional: Proof that a copy of the certified LCA was provided to the employee

The employer must keep the PAF at their place of business. They must maintain the file for three years, separate from other personnel records. The employer should also be sure to maintain the PAF for one additional year after the employee has stopped working at the firm.

CONTINUOUS STAY BEYOND SIX YEARS

H-1B holders may continue to stay in the United States for an extended time if they obtain a permanent resident card, or green card, prior to the end of their six year visa term.

Foreign nationals may also request an extension in H-1B status if they are already in the process of filing for a green card under AC21. The foreign national or their employer must have filed Labor Certification (PERM) or Form I-140 more than 365 days prior to the end of the six year term limit.

COMPETENT IMMIGRATION ATTORNEYS

Please contact the Chugh, LLP team at info@chugh.com for more information on:

• Sponsoring an H-1B worker
• Compliance and audits
• Obtaining and reviewing an educational or experience evaluation
• Discussing prevailing wage guidelines