June 27, 2022

Volume XII, Number 178

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June 27, 2022

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H-1B Visa for Temporary Workers in Specialty Occupations

The hotly debated H-1B temporary worker visa category is poorly understood. This article outlines the principal elements and process of H-1B sponsorship.

 The H-1B temporary worker visa lets professional foreign nationals work in the United States in specialty occupations for a period of up to six years. The application must be filed by the employer; an individual cannot obtain an H-1B visa on his or her own.

The position must be a professional one that requires at least a Bachelor’s degree, and the degree must be in a field of study that specifically relates to the position. If the position requires a license (e.g. physician, dentist, veterinarian), the foreign national must possess the appropriate license prior to the filing of the H-1B petition.

The employer must pay the H-1B worker at least 100% of the prevailing wage. In addition, employers must offer H-1B employees benefits and eligibility for benefits (including participation in health, life, disability and other insurance plans, retirement and savings plans, bonuses and stock options) on the same basis and in accordance with the same criteria applied to U.S. workers.

H-1B Cap

 This visa category is subject to a worldwide cap of fewer than 65,000 per fiscal year (October 1 to September 30 of the following year).  An additional 20,000 are reserved for workers holding a Master’s or higher degree from a U.S. university at the time of application. The H-1B cap does not apply to the following situations:

  1. Employment at a cap-exempt employer, such as an institution of higher education or a related or affiliated non-profit entity, or at a non-profit research organization or a government research organization.

  2. A worker who was counted against the cap in the past six years.

  3. Physicians who receive a J-1 waiver.

When the number of petitions received exceeds the annual quota, the U.S. Citizenship and Immigration Services (USCIS) conducts a lottery to select H-1B petitions for processing. USCIS will not accept cap-subject petitions before April 1, and normally stops accepting them after the first five business days of April. Employers and workers should start the process early enough to ensure filing on April 1.

Procedure

Employers must first obtain the approval of the U.S. Department of Labor (USDOL) by filing a Labor Certification Application (LCA) with USDOL, which will certify that the employer will pay 100% of the prevailing wage. In the LCA, the employer certifies that: (1) it is paying the higher of the “prevailing wage” or “actual wage” for the position, or it is paying the union wage, if applicable; (2) it has notified other workers of the intention to employ H-1B workers; (3) there is no strike or lockout at the place of employment; and (4) the H-1B workers will not adversely affect the working conditions of U.S. workers. There are penalties for failure to comply with these attestations. USDOL may investigate an employer following a complaint or may investigate without a complaint if it receives “specific, credible information” from a reliable source.

USDOL takes about one week to certify the LCA. After USDOL has certified the LCA, the employer seeks USCIS approval by filing Form I-129. USCIS processing times vary and, as of 2017, can take up to ten months unless premium processed. An applicant who is not already work authorized cannot begin employment until the petition is approved by both USDOL and USCIS.

Filing Fees

Current fee amounts are listed on the USCIS website.

Posting Notice (if the position is not covered by a union contract)

H-1B employers must notify other employees of the intention to employ an H-1B worker by posting two notices at two conspicuous locations, such as where the employer posts government notices, at each site at which the H-1B employee will work.

Alternatively, the employer can post this notice through electronic means. The posting must go to employees in the occupational classification in which the H-1B employee is intended to be employed. In most cases, electronic posting is not advisable.

After the notices have been posted for ten business days, the employer should remove them from the walls, sign and date the bottoms and file them in a “Public Access File.”

Posting Notice (if the position is covered by a union contract)

If the position is covered by a collective bargaining agreement, H-1B employers must notify the union representative of the intention to employ an H-1B worker. The employer should send a letter with the notice, which should include a duplicate notice for the union representative to sign acknowledging receipt and return to the employer. The signed notice should be filed in a “Public Access File.”

Public Access File

Employers are required to create a Public Access File for each H-1B employee. The Public Access File may be kept in a personnel department with other personnel files or in the H-1B worker’s department. The Public Access File must contain the following items:

If the position is not covered by a union contract:

  1. The signed posting notices described above.

  2. Proof that the employer will pay at least the “prevailing wage” for the position. This may be satisfied by salary documentation from USDOL’s Online Wage Library. While the employer can rely on authoritative independent sources other than USDOL wages for H-1B purposes, in the event that the employer’s compliance with the LCA is challenged, USDOL could determine that the survey and/or level the employer is relying on does not represent the prevailing wage.

  3. Proof that the employer will pay the H-1B worker at least the “actual wage” for the position. The employer must create a document based on an internal comparison of salaries for similar employment within the company.

  4. LCA instructions.

  5. H-1B Dependency Calculation form.

  6. The certified LCA signed by the employer.

If the position is covered by a union contract:

  1. A copy of the letter provided to the union representative and the posting notice described above.

  2. Documentation of the union contract.

  3. LCA instructions.

  4. H-1B Dependency Calculation form.

  5. The certified LCA signed by the employer.

Because the Public Access File must be accessible to anyone who asks to see it should not include correspondence (other than the letter to the union representative, if applicable), a copy of the H-1B filing, or anything other than what is required. The employer must maintain the file for one year after the expiration date specified on the LCA, one year after the H-1B employee’s end of H-1B status, or for one year after the time in which any complaint is being investigated, whichever is longest.

Additional Employee Protections

 The following additional obligations apply to H-1B employers:

1. Whistle blower protection: An employer may not discharge or otherwise discriminate against an employee, former employee or applicant because he or she has disclosed information to the employer or anyone else regarding a potential violation, or because he or she has cooperated in an investigation or proceeding.

2. No “benching” rule: Employers must pay the H-1B worker the required wage for the full hours specified on the H-1B visa petition, even if the H-1B worker is in non-productive status due to a decision by the employer or based on the H-1B worker’s lack of a permit or license. In other words, full-time employees must be paid full-time wages, and part-time employees must be paid for the minimum hours stated on the petition. This provision does not apply to non-productive time due to non-work-related factors, such as voluntary absence or circumstances rendering the H-1B worker unable to work.

3. Pay return flight: An employer will be liable for the reasonable costs of return transportation of the H-1B worker to the place of his/her last foreign residence if the H-1B worker is dismissed from employment before the end of the period of authorized H-1B admission.

Portability

An approved H-1B petition is not immediately transferable to a second employer or a second job with the same employer. If an H-1B worker accepts a new job, the new employer must begin the entire H-1B process again. However, the employee who is already in H-1B status can join the new employer as soon as the H-1B petition to change employers is “filed” with (i.e. receipted by) USCIS. In other words, the employee does not need to wait until the new petition is approved to join the new company. If the new H-1B petition is ultimately denied, the authorization will end at the time of the denial.

H-1B Extensions

When an H-1B employer files a petition with USCIS to extend the employee’s H-1B status, the employee continues to be work-authorized for up to 240 days from the expiration of the prior H-1B approval while the extension petition is pending.

Visa Strategy for Students

 F-1 or J-1 students, other than foreign medical graduates, are advised to apply for optional practical training (OPT) before applying for H-1B visa classification. Practical training can be authorized for up to 12 months for F-1 visa-holders, and between 18 months and three years for J-1 visa-holders. A student must obtain work authorization from his/her school and USCIS before graduating. If the employment will continue beyond the practical training period, the employer may file an H-1B petition on behalf of the foreign national. Employers and employees should be aware, however, that H-1B visa allocations could be depleted before the end of the fiscal year. While the cap-subject H-1B “change of status” petition is pending, OPT will be automatically extended until October 1, the start date on the H-1B if the H-1B is selected in the cap lottery. For students whose degrees are in the STEM fields (science, technology, engineering, mathematics), OPT may be extended for a further 24 months, provided that the employer has enrolled in E-Verify.

Dependents

Dependents of H-1B workers can apply for H-4 status by filing an I-539 with USCIS or by entering the USA in H-4 status after the H-1B has been approved. H-4 dependent spouses can apply for work authorization if the H-1B employee has an approved Form I-140, Immigrant Petition for Alien Worker, or has held H-1B status for at least seven years.

Foreign Medical Graduates

H-1B petitions for clinical medical doctors must show the following:

 1. Medical license in the state in which the physician will work;

 2. USMLE 1, 2, and 3, FLEX I & II, FMGEMS I & II, or NBME passing scores (all parts of one examination, no mixing of parts allowed);

3. ECFMG certification or a medical school diploma from an accredited U.S. or Canadian medical school; and

4. An M.D. or equivalent foreign degree.

© Copyright 2013 - 2022 Miller Mayer LLP. All Rights Reserved.National Law Review, Volume VIII, Number 25
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About this Author

Hilary T. Fraser, Miller Mayer, work authorizations attorney, immigration benefits Lawyer
Partner

Hilary T. Fraser has practiced immigration law at Miller Mayer since 1991.

Ms. Fraser represents EB-5 families, physicians, engineers, teachers, and other highly trained professionals, as well as hospitals, colleges, IT companies, and religious organizations, in pursuit of work authorizations and other immigration benefits. Ms. Fraser has presented at national conferences on immigration office staffing and U.S. immigration agency practice. Prior to law school, Ms. Fraser lived in China and New York City, where she worked as a teacher and writer...

607-273-4200
Rosanne Mayer, Miller Mayer, Immigration law, EB5, investors, business based immigration, New York, J1 waivers, health care providers, naturalization applications
Partner

Rosanne Mayer is a Partner in Miller Mayer’s Immigration practice group.

Ms. Mayer’s practice focuses primarily on EB-5 investors and business-based immigration matters. Her EB-5 clients include those investing in both Regional Center projects and in qualifying individual EB-5 investments. Ms. Mayer’s business immigration clients include both large and small companies and individuals in the high-tech, academic, and medical fields. She represents clients pursuing both employer-sponsored immigrant and non-immigrant visas, as well as self-...

607-273-4200
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