Requirements for H-1B Visas

  • The H-1B visa is the most utilized non-immigrant employment visa in the U.S.
  • It is the foundation for professional employment in corporations, educational institutions, hospitals, banks and other businesses.
  • 65,000 visas each year released on April 1 for employment start date of October 1
  • Masters Exemption = 20,000 visas for individuals with S. masters or higher degrees are exempt from the cap
  • For Fiscal Year 2016 (Oct. 1, 2015 – Sep. 30, 2016), the H-1B visa numbers were exhausted by April 7!

General Requirements

  • Job requires a bachelor degree or higher, or the equivalent
  • Applicant possesses the degree or equivalent
  • An H-1B is for a “specialty occupation.” INA § 214(i)(1).
  • A “specialty occupation” requires: theoretical and practical application of a body of highly specialized knowledge, and
  • Attainment of a bachelor’s degree or higher in the specific specialty or its equivalent as a minimum for entry into the occupation in the United States.
    • “no apparent requirement that the specialized study needed be in a single academic discipline as opposed to a specialized course of study in related business specialties.” Residential Finance, 839 F.Supp.2d 985, 996.
    • “Diplomas rarely come veering occupation-specific majors.” Residential Finance 839 F.Supp.2d at 997.
  • Including but not limited to: architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts. 8 C.F.R. § 214.2(h)(4)(ii).

Specialty Occupation Standards
8 C.F.R. § 214.2(h)(4)(iii)(A)

Must prove one of four criteria:

  • (1) Bachelor or higher degree normally minimum requirement
    • g., OOH, O-Net, Letters of support, expert opinion letter
  • (2) Degree requirement common in industry in parallel positions and similar organizations or, position so complex and unique
    • g., job posting websites, letters of support, expert opinion letter
  • (3) Employer normally requires degree or equivalent for the position
    • g., degrees of other/past employees
  • (4) Specific duties so specialized and complex that knowledge required typically associated with attainment of bachelor degree
    • g., expert opinion letter, other objective evidence

Beneficiary Qualifications

  • Beneficiary must generally have
    • S. or foreign degree equivalent; OR
      • Reliable credentials evaluation service
    • Education, training and/or progressively responsible experience
      • Evaluation from official with authority to grand college-level credit for training and/or experience in the specialty at an accredited college or university which has a program for granting such credit
      • 3 years of experience = 1 year of college-level education
  • Prevailing Wage Determinations and Labor Condition Applications:
  • Prior to filing an H-1B petition, the employer must first obtain an LCA.
  • An LCA is filed electronically to verify an employer’s FEIN and that the employer is offering the prevailing wage.

Wages and Obligation to Pay Fees

  • Attorney fees attributable to the preparation and submission of the LCA and USCIS petition are considered to be employer business expenses
    • Not “authorized deduction.” 20 C.F.R. § 655.731(c)(7)(iii)(C).
  • If the employer does not reimburse the employee, the DOL takes this into consideration on the required wage.

Change of Employer

  • An H-1B employee is entitled to change his employer.
  • The H-1B employee may start work with the new employer upon the filing of a new petition.
  • Upon filing a new petition, employment authorization is considered to “port” to the new employer.
  • Limits in H-1B Status
    • 6 years but extensions to 7 years and beyond if PERM pending > 1 year or I-140 petition approved
    • Can Recapture Time
  • Employer-Employee Relationship (USCIS Neufeld Memo, Jan. 8, 2010)
  • H-1B Cap Gap – F-1 whose OPT/F-1 status expires between April 1 and October 1
  • H-4 for spouse and children – work authorization for spouse if went through PERM process and waiting for PD to become current
  • Employer responsible for cost of Return Transportation
  • Public Access Files – 20 C.F.R. § 655.700

Step by Step

    1. Define job (Employer/O-Net/OOH) à
    2. Determine PW and confirm with employer à
    3. Notice of Posting à
    4. File LCA (FEIN letter and DOL verification) à
    5. Prepare letter of support (job duties broken down by percentage – be specific!) à
    6. Obtain experience letters / Credentials evaluation à
    7. Complete forms à
    8. Send forms and Certified LCA to employer for signature à
    9. File à
    10. Public Access File (maintain throughout process)

WHAT IS A LABOR CERTIFICATION?

  • A crazy system!
  • General Purpose – 20 C.F.R. § 656.1
    • “There are not sufficient United States workers who are able, willing, qualified and available”
    • “employment of the alien will not adversely affect the wages and working conditions of United States workers similarly employed.”
  • Permanent full-time employment
  • Good faith offer of employment

Prevailing Wage

  • Generally submitted to the DOL NPWC through icert
    • Determine Job title, job duties, education and experience requirements.
  • Alternate requirements (e.g., Masters or Bachelor plus 5 years of progressively responsible experience in the specialty)
    • 8 C.F.R. § 204.5(k)(2)
    • Travel? Supervision of other employees?
  • Special requirements – licensing, certifications, specific skills, etc.

Ability to Pay

  • From the time priority date is established (e.g., filing of labor certification) to the time of approval for lawful permanent residence
  • Tax returns, audited financial statements, annual reports pay stubs, letter from financial officer (if company has more than 100 employees)
  • Net income, net current assets (Schedule L of Form 1120 and Form 1065), or proof employer has paid the beneficiary the Prevailing Wage

Position Information

  • O-Net Online – onetcenter.org
    • System developed by DOL to provide to the general public information on skills, abilities, knowledge, work activities, interests and specific vocational preparation levels associated with occupations. 20 C.F.R. § 656.3.
    • Professional or Non-Professional Occupation?
    • 69 Fed. Reg. 77346 (Dec. 27, 2004) (list of professional occupations)

Recruitment

  • Mandatory Recruitment
    • 2 Sunday Newspaper Ads
    • 10 Day Notice of Filing
  • Additional Recruitment (for Professional Occupations) – 3 out of 10
    • (e.g., job search website, radio and television, employer website, trade or professional organizations, local and ethnic newspapers)
  • Advertising requirements – 20 C.F.R. § 656.17(f) (newspapers and professional journals)
  • Conducted no more than 180 days and no less than 30 days prior to filing (except for one professional recruitment method).
  • Recruitment Report – 20 C.F.R. § 656.17(g)
    • “Lawful job related reasons” for any rejections
    • “reasonable period of on the job training”

Other Notes on PERM

  • Form ETA-9089 at http://www.plc.doleta.gov
  • Employer must payPrevailing Wage or Actual Wage, whichever is higher
  • Employer must pay for all fees associated with PERM (legal and advertising fees)
  • Audit Risks
    • Foreign language requirement
    • Familial relationship
    • Business necessity

Step by Step

  • The PERM Process Step by Step
    1. Define job title, duties, requirements (Employer/O-Net/OOH) – Confirm beneficiary meets requirements
    2. File PW request with DOL
    3. Receive PWD and Confirm Ability to Pay with Employer
    4. Conduct Recruitment
    5. Prepare Recruitment Report
    6. File ETA-9089
    7. Public Access File

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