H - Temporary Workers
The H-1B visa classification was established by Congress for foreign nationals who will be employed temporarily in a "specialty occupation." This is defined as an occupation that requires the theoretical and practical application of a body of highly specialized knowledge and the attainment of a Bachelors or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.
Also, an alien in a specialty occupation must possess full state licensure to practice in the occupation (if required), completion of the required degree, or experience in the specialty equivalent to the degree and recognition of expertise in the specialty. Specialty Workers H-1B status is available for an initial term up to three years with an extended term of an additional three years.
The United States limits the number of H-1B visas to 65,000/year plus an additional 20,000 H-1B visa numbers for foreign nationals who hold Masters Degrees granted by U.S. universities. This is clearly insufficient to meet the needs of US employers seeking to hire foreign professionals as required to maintain or enhance their business competitiveness. As a result, there is a great deal of competition to obtain one of these finite visa numbers.
Each year, the application period for new H-1B requests opens on April 1. However, the H-1B approval can only commence on October 1, which marks the first day of the federal fiscal year. In short, there is a considerable lag time between the date on which an employer files its H-1B petition and the date on which it can expect a foreign national to commence his/her H-1B employment. In recent years, the H-1B numerical allotment has been exhausted quite early in the application cycle.
There are, though, instances in which an H-1B request will not be subject to the H-1B quota. Among the most common cap-exempt situations are the following:
- Non-profit, affiliated university institutions
- Many H-1B extension requests
- Government and private research institutions
- Physicians who have received J-1 waivers.
Employers are required to pay the "prevailing wage" to H-1B workers. The Department of Labor has established regulations which require that the wages paid to an H-1B worker be the higher of:
The actual wage rate paid to other similarly qualified employees, or
the prevailing wage for the occupational class in the general area of employment.
The "actual wage" is determined by examining wages paid to the employees who perform comparable duties and have similar experience, skills and education as the alien. Determination of the "actual wage" must be adequately documented by the employer. The "prevailing wage" is determined by examining wages paid to persons in similar occupations in the general area of employment. In certain circumstances wage surveys may be relied upon. The employer may also request the state employment office to provide a prevailing wage for the occupation in the area. Failure to pay the higher of the actual or prevailing wage can result in back pay obligations, fines, and potentially debarment from hiring other alien workers.
Labor Condition Application and Notice
After having established the prevailing wage, the employer must file the Labor Condition Application (LCA) with the U.S. Department of Labor.
If the employer is subject to a collective bargaining agreement, notice of filing the LCA must be given to the employees' bargaining representative. If there is no such representative, a copy of the LCA (or the information contained therein) must be conspicuously posted at the place of employment.
The LCA contains certifications by the employer, subject to perjury, that the alien will be paid the appropriate wage, that the employment of the alien have no adverse effect on working conditions, that there is not a lockout or work stoppage, and that notice has been provided as required.
The employer is required to keep, for specified periods of time, documentation concerning determination of the actual wage, the prevailing wage, compliance with the notice requirement, the actual wage rates of similar employees, and the filing of the LCA. In certain circumstances, some of this documentation may need to be made available to the public on twenty-four hour notice. It must also be made available to the U.S. Department of Labor upon request. There are specific provisions for the type of documentation to be maintained, the period over which it must be maintained, and the location of the documentation.
Application for H-1B Specialty Worker Status
After the LCA is approved by the Department of Labor, a petition may be filed with the U.S. Citizenship and Immigration Services (USCIS) to classify an alien as an H-1B specialty worker. The petition must be supported by documentation evidencing that the alien is an H-1B specialty worker and that the job requires such a worker. It must also be accompanied by the LCA. The period required to process an H-1B petition is several months, although there is a special program called Premium Processing under which the adjudication time is reduced to 15 calendar-days upon payment of an extra $1225.00 filing fee.