David Wright Immigration Law

PROFESSIONAL WORKERS (H-1B

H-1B Applications Start April 2, 2007 - Now or Never

Professionals who hope to get their first H-1B, and employers who want to hire new graduates will soon have their first chance in a long time. One April 2nd, we will be able to apply for new H-1Bs to begin on October 1, 2007. It is very likely that all of the visa numbers will be used up either on that day or very shortly thereafter. If you are interested in getting an H-1B for yourself or someone else, do not miss this chance.

What is the H-1B Program?

The H-1B program is a lawful way for U.S. companies to employ foreign-born professionals on a temporary basis. The employer must demonstrate that the position requires a professional in a specialty occupation - in immigration law terms, this refers to a position that requires a university degree in a particular field in order to begin work in that field. The employer must also show that the intended employee has the required qualifications. The foreign employee must demonstrate that he or she possesses a baccalaureate degree or foreign equivalent. Increasingly responsible work experience may, in some cases, be substituted education. Usually, three years of work experience is equivalent to one year of university education.

There is a detailed enforcement system in place to identify and punish those who do not comply with these requirements; the punishments include repaying salaries to the foreign workers if found that they have been underpaid, as well as suspension of eligibility from immigration programs for a year.

What Must Employers Do?

Protect wages Employers must pay a wage to every H-1B worker that is equal to or higher than what is typically paid in hte region for that type of work (the prevailing wage), or what the employee pays existing employees with similar experience and duties.

  • Protect working conditions Employers cannot use H-1B professionals to break a strike, and they must notify their current U.S. employees when they hire an H-1B professional. Employers cannot make the H-1B nonimmigrants work under conditions different from their U.S. counterparts, including hours, shifts and benefits.
  • Recruit in the U.S. and not displace U.S. workers Employers who use a large percentage of H-1Bs (H-1B dependent employers) must first try to find a U.S. worker before they can hire an H-1B. They also must attest that they are not hiring the H-1B if they have laid off or displaced a similarly situated U.S. worker. Employers must attest to the above protection by filing with the Department of Labor (DOL) and by maintaining a file available for public access.
  • Be subject to penalties Failure to comply with DOL regulations can result in an investigation, civil and administrative penalties, payment of back wages, and even suspension of eligibility from participating in key immigration programs such as the H-1B program.

The Process: Steps For Bringing Temporary Professionals To the U.S.

An employer who needs the services of a foreign professional on a temporary basis must demonstrate that both the job requirements and the foreigner's credentials or experience are professional. The employer must also meet the DOL requirements noted below and petition the U.S. Citizenship & Immigration Services (CIS, formerly Immigration and Naturalization Service, or INS), part of the Department of Homeland Security, for permission to employ a foreign national. If the employee is out of the country, he or she must also apply for the visa at a U.S. consulate abroad. If the employee is here in the U.S., the CIS can change his or her status without traveling abroad.

Labor Condition Application Process (LCA) - Department of Labor (DOL)

The employer must certify to the Department of Labor that:

  • They are paying the higher amount of what they pay their similar workers, or they are paying what similar workers in their area are paid, whichever is higher.
  • The working conditions of its U.S. workers are not adversely affected.
  • There is no strike/lockout at the specific worksite or in the occupation for which a foreign professional is sought.
  • They have given notice to current employees that they are seeking to hire an H-1B professional.

The DOL certifies receipt and acceptance of the attestation in order to create a public record. The Employer must post the labor condition application for 10 days and maintain a wage file for this job that is open to the public.

There are special rules that apply only to certain employers known as H-1B dependent employers - rules not relevant to the vast majority of employers. Only employers of 51 or more employees whose workforce comprises 15% or more H-1B workers are considered H-1B dependent employers. Smaller employers are allowed a slightly higher ratio of H-1Bs to their total workforce. In addition, these employers must attest that they will not displace a U.S. worker for 90 days before and after filing the visa petition for a foreign worker. They also must attest that they have taken good-faith steps to recruit in the U.S. using industry-wide standards and that they have offered the position to any U.S. worker who applied and was equally or more qualified than the H-1B worker. Dependent employers who pay H-1B workers a salary of $60,000 or more or who employ a person with a master's degree are exempt from these additional attestations.

Violations of the attestations

Employers must follow through on attestations or they are in violation of law and could be required to pay wages, incur civil penalties and be disqualified from the program.

The DOL will begin an investigation of employer practices if someone makes a formal complaint to them.

Immigration Petition (I-129H) - U.S. Citizenship & Immigration Services

The Employer must submit a request to the U.S. CIS, proving that he has completed the Labor Condition Application process and demonstrating that both the employer and the foreign professional qualify for the visa category. The employer must submit a fee of $110 plus a $1000 fee to fund scholarship and training programs, and to fund Department of Labor administration and enforcement activities under the H-1B program. Employers cannot recoup the $1000 fee from the H-1B nonimmigrant or they are subject to fines per violation. Certain employers such as institutions of high education, research organizations affiliated with universities, nonprofit or government research organizations, primary or secondary education institutions, nonprofit entities engaged in "established curriculum-related clinical training of students" and certain non-profit organizations are exempt from the $1,000 fee.

The employer - in a letter normally prepared by their attorney - must explain:

  • The need for someone who is a professional That is: why the job requires a worker with at least a bachelor's degree in a specialized field.
  • That the candidate it seeks to hire does in fact have the required degree (including an equivalency evaluation in the case of a foreign degree) and any other qualifications required.

Visa Application - Department of State (DOS)

Many people are unclear about the difference between a visa and status. A visa is issued by Department of State, usually at the U.S. consulate in the person's home country. It is a stamp or paper pasted into the non-immigrant's passport, giving permission to enter the U.S. Status is granted by the U.S. CIS when the person arrives at the inspection point in the airport or on the border. The non-immigrant is given a small piece of paper, called an I-94, which is usually stapled into the passport, giving them permission to remain inside the U.S. for a period of time.

Professionals who are outside the U.S. when their employer's H-1B petitions are approved must apply for an H-1B visa at a U.S. consulate. U.S. Foreign Service Officers evaluate the visa applications to determine each applicant's admissibility.

Professionals who are already in the U.S. under a particular status can petition the U.S. CIS for change of status to H-1B.

Portability

Portability means that an employee who was previously issued an H-1B visa or provided H-1B visa status by one employer is authorized to accept work from and begin work immediately with a new employer, upon the filing of a petition by the new employer. Prior to the enactment of this provision, an H-1B worker switching from one employer to another would have to wait several weeks for the H-1B visa petition to get approved before being able to work for the new employer.

In order to be eligible for portability, you cannot have worked without authorization or have overstayed your period of stay in the US.

Extension Of H-1B Status Beyond Six Years

Extensions of H-1B status beyond six years are available in two situations.

The first situation occurs when the H-1B worker is a beneficiary of an employment-based immigrant petition and is subject to per-country limitations. In this event, the alien is eligible to obtain a one-time extension of nonimmigrant status valid until his or her application for adjustment of status has been decided.

The second situation allows extensions of H-1B status in one-year increments beyond the six-year limitation in the case of nonimmigrants who had previously been issued H-1B visas or had H-1B status if 365 days elapsed since the filing of either a labor certification application or an employment-based immigrant petition on his or her behalf. This provision, however, does not take effect unless the immigrant petition has been filed and failed to provide relief to people with long-pending and still-pending labor certification applications. The extensions provided under this provision continue until the final decision is made on the alien's permanent residence application.

These short descriptions are likely to leave you with more questions, which I would be happy to address in the context of your own situation. Legal matters are serious enough that one should always discuss them with a lawyer who can collect and keep track of all the relevant documents and information. For this reason, please note that this document does not constitute legal advice, but only a basic introduction to this subject.

I would be happy to discuss your own situation directly. If you would like to arrange an appointment, please call Nela López, my assistant, at my office number, (415) 421-1264, or send me an email