H-1B Visas

The H-1B visa allows workers in specialty occupations - areas that normally require a college degree - to work in the U.S. for up to a total of six years. 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 file for a green card and become a permanent resident. There is annual limit of 65,000 visas under this category.

In an H-1B visa application, the U.S. employer is called the petitioner and the foreign worker is called the beneficiary. After an offer of employment is made, 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 U.S. Department of Labor.

Once the wage information has been obtained, a Form ETA 9035 Labor Condition Application (LCA) must be submitted to the U.S. Department of Labor. On this form, the employer must disclose the wage to be paid, the prevailing wage, and must make certain attestations. This form is electronically filed and an approval is usually issued within a few minutes.

The LCA has 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.

The Labor Condition Application

The requirement of a LCA was imposed in the 1990 Immigration Act. It serves two 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.

Once the LCA has been filled in, it is submitted to the Department of Labor (DOL). 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 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 criteria:

• 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.

To 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 U.S. their degree must be evaluated by a credentials evaluation service to ensure it is at least equal to a U.S. bachelor's degree. Note that if the alien attended college abroad, and then obtained an advanced degree in the U.S., no evaluation of their undergraduate degree is required because it is presumed that the U.S. 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.

Extensions of Stay

The maximum authorized stay in the U.S. 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.

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 U.S. without a trip abroad to a U.S. 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.

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 U.S. without having to leave and get a new visa stamp.

Most people think that changing H-1B employers means that a new visa stamp is needed the next time someone leaves and reenters after a change of status in the U.S. 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 U.S. (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 abroad.

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 be necessary

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.