The 1990 and 1998 amendments to the INA implemented a limit of 115,000 on the number of persons who may receive H-1B status in each fiscal year (FY 1999-2000). The visas decreased to 107,500 in fiscal year 2001 and to 65,000 in fiscal year 2002. The limit of 65,000 per annum remains in place today. However, an additional 20,000 H-1B visas are available to foreign workers who have obtained a master’s degree or higher from a U.S. academic institution. Furthermore, foreign workers with offers of employment from institutions of higher education, related or affiliated nonprofit entities, or non-profits research organizations are exempt from any numerical limitations. Extraordinary ability entertainers, athletes and artists (now under the O and P visa categories) were removed from the H-1B category classification. The most significant change is that an H-1B approval from the USCIS can only occur upon prior approval of a labor condition application (LCA) by the Department of Labor (DOL).
Under the Immigration and Nationality Act (“INA”), the H-1B category is available to a foreign worker seeking to enter the United States for the purpose of working in a “specialty occupation”.
The term “specialty occupation” is defined in the Immigration and Nationality Act (“INA”) as an occupation that requires a theoretical and practical application of a highly specialized body of knowledge and the attainment of a bachelor’s or higher degree (or its equivalent) in the specific specialty. Pursuant to the federal statute the list of potential occupations that fall within the term “specialty occupations” is not limited to the professions stated in the statute. As long as an occupation can be shown to fall within the ambit of the above definition, the job position can qualify for H-1B status.
Certain occupations have no trouble meeting this definition, because specialty occupations are deemed to include “professions.” INA § 101 (a) (32) states that the term “profession” shall include but not be limited to architects, engineers, lawyers, physicians, surgeons and teachers in elementary or secondary schools, colleges, academies or seminaries. These occupations would easily qualify for H-1B status because each one is specifically mentioned in the statute.
Job Position Requirements
To qualify as a specialty occupation, one of the following criteria must be met:
- a bachelor’s degree or higher (or its equivalent) is normally the minimum entry requirement for the position;
- the requirement of a degree for the position is a common requirement in the industry or, in the alternative, the position is so unique or complex that it can only be performed by someone with a degree;
- the employer normally requires a degree or its equivalent for the position; or
- the nature of the job duties are so specialized and complex that the knowledge required to perform the duties is usually associated with a bachelor’s degree or higher.
If the position is a specialty occupation, the foreign worker must show then that he or she is qualified to fill the position. The INA specifies that to meet the requirements of the specialty occupation, the alien must possess the following:
- full state licensure, if required for practice in the state; and
- either of the following:
- completion of a bachelor’s degree or higher (or its equivalent) in the specific specialty; or
- experience in the specialty equivalent to the completion of such degree and recognition of expertise in the specialty through progressively responsible positions relating to the specialty.
The federal regulations contained in Title 8 of the Code of Federal Regulations (the CFR) specify that for the purposes of determining equivalency to a bachelor’s degree in the specialty, three (3) years of specialized training and/or work experience must be demonstrated for each year of college level education the foreign worker lacks. Labor Condition Application (LCA)
The filing of an H-1B petition for an alien in a specialty occupation requires an approved Labor Conditions Application (LCA), valid for the dates of intended employment by the Department of Labor (DOL). An LCA does not require proof that U.S. workers are unavailable.
An LCA, however, does require that the employer make the following promises or attestations:
- that the compensation to be paid to the H-1B worker will be the greater of:
the actual wage paid by that employer to all other individuals with similar experience and qualifications for the specific employment in question at the place of employment; and the prevailing wage for the occupation in the area of intended employment;
- that there is no strike or lockout in the occupational classification of the H-1B worker at the place of employment and if such a strike or lockout occurs:
The employer will notify the Department of Labor within three (3) days of the occurrence; and the employer will not use the LCA in support of an H-1B petition until the strike or lockout has ceased;
- that a copy of the LCA has been or will be provided to each H-1B nonimmigrant employed pursuant to the LCA and either:
- notice of the filling of the LCA has been provided to the bargaining representative of workers in the occupation in which the H-1B worker will be employed; or
- where there is no such representative, that notice has been posted and was, or will remain, posted for 10 days in at least two (2) conspicuous locations where the H-1B worker will be employed; and
- that certain supporting documents will be made available for public examination within one (1) working day of filing the LCA.
The LCA is valid for a maximum period of three (3) years. Failure to comply with the LCA requirements can result in severe employer sanctions imposed by the federal government. Furthermore, employers defined as “H-1B dependent” must make additional attestations.
“H-1B dependent employer” is one that:
- has 25 or fewer full-time equivalent employees in the United States and employs more than seven (7) H-1B non-immigrants;
- has 26-50 full time equivalent employees in the United States and employs more than 12 H-1B non-immigrants;
- has more than 50 full time equivalent employees in the United States and at least 15 percent of whom are H-1B non-immigrants.
Terms of Admission
An H-1B visa is initially valid for up to three (3) years. Extensions may be requested up to a maximum stay of (6) years in either H or L status. The H-1B worker must then reside outside the United States for at least one (1) year before becoming eligible for H status again. The limit of 6 years is extended if ETA-9089 & I-140 are filed & approved.
Pursuant to Federal Regulation 8 CFR § 214.2 (h)(6)(vi)(E), the employer of an H-1B worker will be liable for the reasonable costs of return transportation of the alien abroad, if the alien is dismissed from employment for any reason by the employer before the end of the period of authorized admission. If the H-1B beneficiary voluntarily terminates his or her employment prior to the expiration of the validity of the petition, the H-1B beneficiary has not been dismissed. This provision applies to any employer whose offer of employment became the basis for the alien obtaining or continuing H status. However, there is no statutory or administrative mechanism for enforcing this obligation.
The doctrine of dual intent is statutorily recognized for the H-1B category. Therefore, the H-1B status holder can still pursue his/her status permanent residency without being required to maintain a foreign residence.
Dependents of H-1B Foreign Employees
The H-1B worker’s spouse or unmarried children under age 21, who are accompanying or following to join the H-1B worker, can be admitted as H-4 dependents. H-4 dependents are not permitted to engage in employment except spouses of an H-1B principal who is the beneficiary of an approved Form I-140 or have received the H-1B beyond the six (6) year limit. However, the dependents may study and also engage in activities ordinarily permitted for B-2 visitors. The doctrine of dual intent is also recognized for H-4 dependents of H-1B workers.
CONTACT A BOARD-CERTIFIED IMMIGRATION ATTORNEY AT ADAN G. VEGA & ASSOCIATES, PLLC
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