The H-1B category, for the most part, has continued to be the most useful visa category for bringing in highly skilled professionals to work in the U.S. The H-1B classification is available only to workers in occupations requiring highly specialized knowledge normally acquired through attainment of a related four-year college degree. The offered position must require and the alien must possess at least a Bachelor’s degree, or its equivalent, in a related field, in order to qualify for an H-1B visa.  Specifically, an H-1B petition must satisfy one or more of the following criteria for the petition to be considered qualified as filing for a “specialty occupation” position:

• At least a bachelors degree in the specialty is normally required for the position
• It is common in the industry in parallel positions among similar employers to require a degree in the specialty, or the position is so complex or unique it can only be performed by someone with a degree in the specialty
• The employer normally requires a degree in the specialty for the position
• The duties are so specialized or complex that knowledge required is usually associated with a degree in the specialty.

The H-1B category is subject to an annual numeric cap. When the Immigration Act of 1990 was passed, a component of that Act was an annual limit on the number of H-1B nonimmigrants who could be admitted each year. This cap was set at the arbitrary number of 65,000. Several laws were passed that raised the annual cap temporarily. The annual cap was raised to 195,000 for fiscal years 2001, 2002 and 2003, and reverted back to 65,000 for fiscal year 2004. Singapore/Chile Free Trade Agreements reserving H-1B1 status for nationals of those countries were passed in 2003, and deduct up to 6,800 numbers annually from the overall H-1B cap. An additional allotment of 20,000 H-1B exemptions from the H-1B cap limited to those who hold a U.S. Masters Degree (or higher) was passed in 2004.

In 2000, Congress created a sub-category of cap-exempt employers. Specifically, these employers may file H-1B petitions regardless of whether the H-1B cap has been reached:

• academic institution of higher education,
• nonprofit entity associated with an academic institution of higher education,
• nonprofit research organization, or
• governmental research organization.

The annual H-1B cap is intended to affect only the filing of petitions by cap-subject employers on behalf of those who are being accorded H-1B nonimmigrant classification for the first time, whether they are in the United States and seeking a change of status or are abroad and will be applying for an H-1B visa at an American Consulate. Therefore, the cap does not limit or affect the timing of the filing of extensions of stay for:

• concurrent H-1B employment (i.e., employment with two or more H-1B Employers at the same time);
• petitions for sequential H-1B employment (i.e., an H-1B nonimmigrant ceasing employment with one petitioner and commencing employment with a new petitioner once the new petition is filed) unless the employee was exclusively employed by a cap-exempt employer, and therefore not accorded an H-1B number; or
• the filing of amended H-1B visa petitions mandated by material changes in the nature of or geographical location of the employment which was previously approved.

The H-1B petition requires a two-step process that involves the preparation and filing of a Labor Condition Application followed by the preparation and filing of the H-1B visa petition.

► The Labor Condition Application (LCA)

Prior to filing the H-1B petition with USCIS, Employers must file a Labor Condition Application (LCA) with the Department of Labor (DOL). The LCA is a multi-page application which requires the Employer to provide certain information and make several attestations. As an employer, you are required to attest to the following:

1. Pay Rate:  You will pay nonimmigrants at least the local prevailing wage or the employer’s actual wage, whichever is higher; you will pay the employee for non-productive time; and you will offer nonimmigrants benefits on the same basis as those offered to U.S. workers
2.  Working Conditions:  You will provide working conditions for nonimmigrants that will not adversely affect the working conditions of workers similarly employed
3.  Strike, Lockout or Work Stoppage:  There is no strike or lockout in the occupational classification at the place of employment
4.  Notice: You have provided notice to either a union or workers at the place of employment and that a copy of the LCA will be given to affected H-1B workers. For more information about posting notice, see https://www.jackson-hertogs.com/lca-compliance-in-an-era-of-work-from-home-and-shelter-in-place/.
5.  H-1B Dependent or Non-dependent Employer or Willful Violator: You are indicating on this form whether your company is H-1B Dependent, Non-dependent or a Willful Violator of the LCA program. In order to determine dependency, you must determine the number of H-1B employees compared to Full-time Equivalent Employees. If your Company is an H-1B Dependent employer or Willful Violator, you will be required to make additional attestations unless this LCA will only be used for EXEMPT employees. Exempt employees are those employees who either (a) will receive a base gross compensation of at least $60,000 per annum; or (b) possesses a U.S. or foreign equivalent Master’s degree (actual degree, not combination of education and experience).
6.  If your Company is H-1B Dependent employer and the LCA will not be used for Exempt employees, then you must make the following additional attestations that your Company:
• Displacement: Will not displace U.S. workers within your own work force
• Secondary Displacement: Will not displace U.S. workers working at another employer’s worksite
• Recruitment & Hiring: Will recruit U.S. workers and hire U.S. worker applicant(s) who are equally or better qualified than the H-1B nonimmigrant.
► The H-1B petition

Upon DOL approval of the LCA, the Employer can file the H-1B petition. This procedure requires the filing of Form I-129, as well as the H Supplement, approved LCA, and supporting documents, with the appropriate USCIS Regional Center.

The Employer also furnishes to USCIS a statement which describes the Employer’s business in the U.S.; the offered position including job duties to be performed by the H-1B nonimmigrant; the reasons why the Employer believes that the individual is qualified for the position based upon his/her educational background; and a description of a project or several projects to which the applicant will be assigned that will require his/her services for a period of up to 36 months. In support of the petition, sufficient evidence must be attached to establish that the employee has a U.S. degree or its foreign equivalent, and will be working in a specialty occupation.

The minimum requirement for classification as an H-1B nonimmigrant is that the alien must possess a bachelor’s degree in a field that is related to the specialty occupation. In those situations where the alien does not possess a U.S. degree, USCIS will accept either an equivalent foreign degree or will consider those aliens who possess the equivalent of a bachelor’s degree through a combination of education and/or practical experience. When considering a combination of education and experience, USCIS equates three years of experience as being equivalent to one year of education. This is the “3 for 1” rule and only applies to H-1B issues. For example, if a prospective employee has a three year Bachelor of Science degree from the University of Madras and three years of full-time software development experience, it is likely that a credential evaluator and USCIS will determine that she has the equivalent of a U.S. bachelor’s degree in computer science from an accredited university or college based on a combination of education and experience. In most situations where the alien does not possess a U.S. degree, an advisory educational evaluation must be submitted to USCIS with the petition which confirms that the alien has the equivalent of a U.S. degree. Please refer to the current processing times on our website for information on processing times.

If the alien is already in the U.S. in valid nonimmigrant status, we can request a change of status or extension of nonimmigrant stay at the same time that we file the H-1B visa petition. Under the American Competitiveness in the 21st Century Act (AC21), some individuals will be eligible to start work based on filing of the H-1B petition. Please refer to our website memo regarding H-1B Portability for additional information on AC21. Spouses and children under the age of 21 who are in the U.S. may apply for a change of status/extension at the same time. Family members who derive their nonimmigrant status from that of an H-1B nonimmigrant will be classified as H-4 nonimmigrants. H-4 nonimmigrants are not authorized to accept employment in the U.S., but may attend school.

H-1B employees and their derivative family members are limited to a maximum stay in the U.S. of six years in “H” status. Initial admissions may be for a maximum of three years, with an extension of up to three additional years. There is no limit as to how many different H-1B visa petitions may be filed for any one alien so long a s/he has not remained in the U.S. for over six years in H-1B status. In those instances where the employee will be required to remain outside the U.S. for extended periods of time (exclusive of vacations), s/he should track periods of stay in the U.S. in order to benefit from the entire six years of the permitted stay.

Under the American Competitiveness in the 21st Century Act, some individuals will be eligible to extend their stay beyond the 6th year limit. Please refer to our website memo regarding H-1B 7th Year Extensions for additional information on AC21.

This information is intended for clients of Jackson & Hertogs only. This is not intended to provide legal advice to non-clients of this firm. Nor will we respond to inquiries from non-clients. You should seek your own legal counsel in these matters.