- 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!
- 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 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
- S. or foreign degree equivalent; OR
- 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
- Define job (Employer/O-Net/OOH) à
- Determine PW and confirm with employer à
- Notice of Posting à
- File LCA (FEIN letter and DOL verification) à
- Prepare letter of support (job duties broken down by percentage – be specific!) à
- Obtain experience letters / Credentials evaluation à
- Complete forms à
- Send forms and Certified LCA to employer for signature à
- File à
- 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
- 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
- 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)
- Job Order with State Workforce Agency (SWA) – 30 days on employflorida.com
- 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
- Define job title, duties, requirements (Employer/O-Net/OOH) – Confirm beneficiary meets requirements
- File PW request with DOL
- Receive PWD and Confirm Ability to Pay with Employer
- Conduct Recruitment
- Prepare Recruitment Report
- File ETA-9089
- Public Access File
The Law Offices of Rose H. Robbins represents immigration clients all over the United States and all over the world. Please call us at: (954) 946-8130 to schedule your free telephone consultation. This is a FREE consultation and you will not be charged for this call.
You may also fill out the “Contact an Immigration Lawyer” form below for instant delivery to our confidential email system. The Law Office of Rose H. Robbins will contact you within twenty-four (24) business hours of receipt of this form to discuss your questions. I understand that by submitting this form that the Law Office of Rose H. Robbins does not represent me and are are not my attorney and there is no attorney-client relationship by submitting my question or requesting that the Law Office of Rose H. Robbins contact me. I understand that the ONLY way that the Law Office of Rose H. Robbins will represent me is by entering into a written fee agreement/retainer agreement and that this form is not a fee agreement/retainer agreement.
We look forward to hearing from you!