H-1B SPECIALTY WORKERS

GENERAL

This classification is designated for Specialty Occupations; that is, those that require theoretical and practical application of highly specialized knowledge and attainment of at least a bachelor's degree (or foreign equivalent) and state licensure if required to practice. A combination of education, training, and work experience may substitute for a bachelor's degree. In such cases, three years of specialized training and/or experience can substitute for one year of college study. For an employer's petition for "sponsorship" of an H-1B nonimmigrant to be approved, the specialty worker's credentials must match the needs of the position to be filled within the specialty occupation.

Step 1: Labor Condition Application (LCA)
Deciding agency: DOL

Attestation

Employer applicants must list number of workers sought as well as their occupational classification(s), wage rates, and working conditions. Employers must attest that:

• Prevailing wage rate for area of employment will be paid.
• Working conditions of H-1B employee will not adversely affect similarly employed American workers.
• Place of employment is not experiencing a labor dispute involving a strike or lockout.
• Notice of the filing of LCA is posted in place of employment or has been given to employee bargaining representative (if applicable).

Procedures/conditions

• Employer applicants file LCA on Form ETA 9035 with DOL regional office serving area where the specialty worker will be employed.
• DOL reviews LCA for completeness and certifies within 7-day period , returning copy to employer.
• LCA is valid for 3 year initial H-1B admission period (or any lesser period requested by petitioning employer).
• LCA may cover multiple workers in the same occupation.
• Special restrictions apply for positions that require employees to work in more than one location.

Step 2: Petition (Form I-129)
Deciding agency: USCIS

Petition

• Employer petitioner files Form I-129, plus H Supplement and fee, at USCIS Service Center nearest to place of employment, including certified LCA and letter of support from employer/petitioner. If the beneficiary is present in the U.S. under another nonimmigrant classification, the same Form I-129 is also used to request change of status for the beneficiary from the current classification to H-1B.
• If petition is approvable and H-1B numbers are available for employment beginning when requested by the petitioner , USCIS mails approval to employer petitioner on Notice of Action Form I-797B.
• If H-1B petition is denied, it is appealable to USCIS' Administrative Appeals Office.
• Change of status inside the U.S. is an alternative to consular processing. Regarding H-1B beneficiaries waiting for H-1B approval outside the US, Service Centers notify the consulates and/or beneficiaries bring Form I-797 approval notice and copy of H-1B petition to the consulate to support application for an H-1B consular visa.

Terms and conditions of H-1B classification

• H-1B employment is temporary. The maximum allowable continuous period of H-1B employment is 6 years (unless an alien labor certification application or I-140 petition is filed prior to the start of the 6th year).
• H-1B foreign specialty workers are entitled to have "dual intent," i.e. they are not presumed to be intending immigrants, not required to maintain foreign residence, and are entitled to engage in temporary approved employment while pursuing permanent residence in the U.S.
• There is an annual cap on new H-1B approvals of 65,000 workers. Exempt from this cap are foreign nationals who have earned a Master's or higher degree from a U.S. institution of higher education. This exemption is capped at 20,000 per fiscal year.
• The annual cap does not apply to H-1B petitions for extension of stay or change of employer.
• Work authorization for H-1B foreign specialty workers is employer-specific (limited to approved employer).
• If more than one employer will employ an H-1B nonimmigrant (i.e. the H-1B nonimmigrant will have two or more part-time H-1B positions), each employer must file a separate LCA and Form I-129.
• H-1B employers must pay return transportation costs for employees terminated prior to the end of approved period of employment.
• Employers should notify USCIS when H-1B workers are terminated so that USCIS may recapture those H-1B numbers for use by the beneficiaries of other H-1B petitions for new employment.
• Family members may not be employed under the H-4 classification for H-1B dependents. They may only accept employment if authorized under another classification for which they qualify.

Duration of stay

Approved H-1B nonimmigrants are initially admitted for the approved period or a maximum of 3 years. If employment is approved for a longer period, a petition for extension of stay can be filed before the expiration date. The maximum period of H-1B employment cannot exceed 6 years (unless an alien labor certification application or I-140 petition is filed prior to the start of the 6th year). In order to be readmitted as a specialty worker after working in the U.S. under the H-1B classification for the maximum period of time, the alien worker must remain outside the U.S. for at least one year and the employer must file a new petition.

Step 3: Consular visa (alternative to change of status in the U.S.)
Deciding entity: U.S. Consulate

Procedure

• Employee files Form DS-156 and DS-157 (if applicable) at U.S. Consulate abroad (Canadians exempt).
• Consular visa allows employee to apply for USCIS admission to U.S.

Terms and conditions

Visa issuance is subject to consular discretion. Consular officers apply standards to visa adjudications beyond the terms and conditions of the classification under which the alien seeks to enter the U.S. In addition, they may deny visas in cases where they are aware that representations made in USCIS petitions are questionable or inaccurate. The duration of a visa generally depends upon reciprocity with home country and may provide, within that period of time, for a single or multiple entries into the U.S. under the indicated visa classification. Where extension of stay under a given nonimmigrant classification is granted for a period beyond the expiration date of the consular visa, a new visa is needed.

AMENDMENT OF H-1B PETITIONS

Change of Employer Name and/or Ownership Structure

USCIS' Aleinikoff policy memorandum (8-22-96) regarding amendment of H-1B petitions states that "changes in the ownership structure of the petitioning entity generally do not require the filing of a new or amended petition if the petitioning entity continues to remain the alien beneficiary's employer, provided the new owner(s) of the firm assumes the previous owner's duties and liabilities..." This has been interpreted by USCIS Adjudications to apply to acquisition of discrete functional components or divisions of companies.

Transfers of H-1B employees

USCIS' Hogan policy memorandum (10-22-92) regarding amendment of H petitions provides that when an H-1B employee is transferred from one employer to another, the new employer must file a new petition. On the other hand, transfer of an H-1B employee to another worksite does not require an amended petition unless a new LCA is needed. In such a case the petition must be amended. A transfer from one branch office to another, in and of itself, does not require an amended petition because branches are considered to be part of the same parent entity.

Visa portability

Visa portability provisions in AC21 allow a nonimmigrant alien previously issued an H-1B visa or otherwise accorded H-1B status to begin working for a new H-1B employer as soon as the new employer files a "nonfrivolous" H-1B petition for the alien. A "nonfrivolous" petition is one that is not without basis in law or fact. Forthcoming regulations will further clarify this standard.

The portability provisions described in AC21 relieve the alien from the need to await approval notification from the USCIS before commencing new H-1B employment. In order to be eligible for the visa portability provisions: (1) the alien must have been lawfully admitted into the United States; (2) an employer must have filed a nonfrivolous petition for new employment before the date of expiration of the period of stay authorized; and (3) the alien must not have accepted unauthorized employment subsequent to his/her admission and before the filing of the new petition.

An H-1B applicant for admission who is no longer working for the original petition is admissible at a Port of Entry, pursuant to portability provisions in AC21, as long as certain conditions listed below are met. If these conditions are met, the H-1B applicant is admissible to the validity date of the previous H-1B petition, plus ten days. H-4 applicants for admission, who are dependants of H-1B aliens employed pursuant to visa portability provisions, must meet these same requirements.

1. The applicant is otherwise admissible.
2. The applicant, unless exempt under 8 CFR 212.1, is in possession of a valid, unexpired passport and visa (including a valid, unexpired visa endorsed with the name of the original petitioner).
3. The applicant establishes to the satisfaction of the inspecting officer that he or she was previously admitted as an H-1B or otherwise accorded H-1B status. If a visa exempt applicant is not in possession of the previously issued form I-94, Arrival/Departure Record, or a copy of the previously issued I-94, the applicant may present a copy of the Form I-797, Notice of Action, with the original petition's validity dates.
4. The applicant presents evidence that a new petition was filed timely with the Service Center, in the form of a dated filing receipt, form I-797, or other credible evidence of timely filing that is validated through a CLAIMS query. In order to be a timely filing, the petition must have been filed prior to the expiration of the H-1B's previous period of admission. It must be emphasized that the burden of proof remains with the alien to prove that he or she is admissible as an H-1B and eligible for visa portability provisions described in AC21.

Mergers and Acquisitions

A recent amendment (10/30/00) to INA 214 (c) provides that "[a]n amended H-1B petition shall not be required where the petitioning employer is involved in a corporate restructuring, including but not limited to a merger, acquisition, or consolidation, where a new corporate entity succeeds to the interests and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner."

Change in Specialty Occupation

When an H-1B employee changes specialty occupation, an amended petition must be filed.

Effect of Requirement for Amended Petition on Continued Employment

Service policy acknowledges the business necessity of keeping aliens employed under changing circumstances and does not require an H-1B alien to wait for approval of an amended petition in order to work for the same entity.

UNLAWFUL PRESENCE

Nonimmigrant employees can suffer serious consequences from lapses or breaches of status. In the event of an overstay, the H-1B consular visa is automatically canceled, meaning that in most cases an alien who needs to travel will have to return to the home country to obtain a new consular visa before re-entering the U.S. As of the date of overstay, the alien will also begin to accrue time in unlawful presence. Unlawful presence also begins to accrue when an immigration judge makes a determination of breach of H-1B status or where a USCIS adjudicator denies extension of stay, change of status, or change of H-1B employment because of a lapse of status. If 180 days of unlawful presence accrue, the alien becomes inadmissible to the U.S. for 3 years; if one (1) year of unlawful presence accrues, the alien becomes inadmissible to the US for 10 years.

INCREASED FEE FOR SCHOLARSHIPS AND TRAINING

Effective December 8, 2004, a $1500 fee (over and above the current filing fee of $190) is imposed on petitioning employers to fund scholarship and training programs, for U.S. citizens, lawful residents and other U.S. workers to attend job training and receive low-income scholarships or grants for mathematics, engineering or science enrichment courses administered by the National Science Foundation and the Department of Labor and to fund DOL administration and enforcement activities under the H-1B program. This fee must be paid by the employer and the employer may not seek reimbursement of this fee from the employee under any circumstances.

Petitioners who employ no more than 25 full-time equivalent employees, including any affiliate or subsidiary, may submit a reduced fee of $750. Certain types of petitions are exempt from the new $1,500 and $750 fee. The new $1,500 and $750 fee applies to any non-exempt petitions filed with USCIS after December 8, 2004.

In addition, the H-1B provisions of the Omnibus Appropriations Act creates a new Fraud Prevention and Detection Fee of $500 which must be paid by petitioners seeking a beneficiary's initial grant of H-1B nonimmigrant classification or those petitioners seeking to change a beneficiary's employer within those classifications. Other than petitions to amend or extend stay filed by an existing H-1B employer, there are no exemptions from the $500 fee. The new $500 fee applies to petitions filed with USCIS on or after March 8, 2005.