H1-B Specialty Occupation Visa
The H-1B visa is the most common nonimmigrant visa for professionals seeking to work in the United States. However, the visa is subject to strict requirements and many limitations, including an annual lottery-style selection system.
The law limits issuance of an H-1B visa to those seeking to perform services in a “specialty occupation” or as a fashion model. The term “specialty occupation” means an occupation that requires (i) theoretical and practical application of a body of highly specialized knowledge and (ii) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation. In more basic terms, the job offered must be one that requires at least a bachelor’s degree in a specific field of study.
A simple illustration of a specialty occupation is a mechanical engineer, which requires a degree in mechanical engineering or a closely related field. Similarly, an accountant position will generally require a degree in accounting or a field closely related to accounting.
However, not all occupations neatly fit with a specific degree. For example, employers hiring financial analysts will often hire workers holding a degree in finance, business or economics.
Further, even in cases where the prospective employee holds a degree in a field related to the occupation, USCIS may find that the occupation does not require a specific degree or even a degree at all. For example, a candidate for a public relations manager position may hold a degree in public relations, but USCIS generally holds that the occupation does not require a specific degree. In the case of graphic designer, UCSIC generally deems that the occupation does not require a degree and thus even if the candidate holds a degree in graphic design, USCIS will deny the petition on the grounds that no degree is required.
It is essential that that the position title, duties and educational requirements be carefully analyzed at the outset in order to ensure that a position meets the definition of specialty occupation. A USCIS finding that the petitioner has failed to demonstrate that a position is a specialty occupation is one of them most common ground for denial.
The law imposes an annual cap on the number of H-1B visas that can be issued each fiscal year. This cap is currently set at 65,000 plus an exemption from the cap for the first 20,000 petitions for individuals holding advanced degrees from U.S. universities. However, 6,800 of the 65,000 are set aside for petitions filed under U.S. free trade agreements with Chile and Singapore, leaving just 58,200 visas in the standard H-1B pool. (Unused Chile and Singapore visas from the prior fiscal year are made available the following fiscal year, so the actual number will be between 58,200 and 65,000 each year.)
Under the 2004 H-1B Visa Reform Act, Congress exempted the first 20,000 advanced degree graduates of U.S. universities from the 65,000 cap. Thus USCIS will not count the first 20,000 petitions involving those holding master’s degree or higher from a U.S. school against the cap. However, once those 20,000 are received, USCIS will count additional advanced degree workers against the 65,000 cap.
Historically, each year the 65,000 cap has been exhausted and all 20,000 advanced degree exemptions used. For Fiscal Year (FY) 2008, the 65,000 cap was reached in just one day and in FY 2009 in a week. For FY 2010 and FY 2011, the numbers were not exhausted until December 21, 2009 and January 27, 2011, respectively, due to the economic downturn and a law that prohibited companies that received federal funding under the Troubled Asset Relief Act (TARP) from filing H-1B petitions. The TARP restrictions ended after FY 2011, and the annual cap has been exhausted every fiscal year since.
In certain cases, an employee or employer is exempt from the cap. Institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations are exempt from the cap. (Note that only nonprofits related to or affiliated with institutions of higher education qualify). A petition for a worker who has already been counted against the cap during the previous six years is also exempt (unless the individual is eligible for a full six years of authorized admission at the time the petition is filed). Finally, a petition for a J-1 nonimmigrant changing status to H-1B after obtaining a waiver through the Conrad 30 Program or another federal government program is exempt from the cap. Please note that an employee transferring from a cap exempt employer to a cap subject employer will be subject to the annual quota.
For the foreseeable future there is every indication that both the H-1B cap and the advanced degree exemptions (the so-called master’s cap) will be exhausted every year. The earliest acceptance date for cap-subject petitions is April 1st and USCIS will count petitions against the caps as they are received, not as they are approved. A visa must be available under the cap when the H-1B visa petition is filed; USCIS will not approve a petition once the cap has been reached for the fiscal year if the petition has a start date that falls within that fiscal year.
If you or your employer intend to apply for a cap-subject H-1B, we urge you to begin the process as early as possible so that your petition is ready for filing on March 31st for receipt by USCIS on April 1st. There is considerable preparation required in order to file an H-1B petition with USCIS, including obtaining a prevailing wage and filing a labor condition application with the U.S. Department of Labor (see below). Also, because the employer, not the employee, is the petitioner, time must be allocated for paperwork to be reviewed by company officials and proper signatures obtained.
Cap Gap Extensions
Many H-1B beneficiaries are recent graduates of U.S. schools. After graduation in May or June, university graduates typically opt for a year of practical training (OPT), which allows them to work legally in the United States for one year. Following expiration of the OPT, a student is granted a 60-day grace period to make preparations to return home.
Thus many students find their F-1 status expiring in July or August, but have a pending or approved H-1B petition permitting them to start working again on October 1, 2012. Having to depart the country for a couple of months and return to start work again on October 1, 2012 is a major disruption for student and employer alike. To ameliorate that problem, USCIS regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the gap between expiration of student status and commencement of H-1B employment. This is known as “cap-gap.”
The cap-gap issue can be confusing to an employer considering hiring a student and filing an H-1B petition on his or her behalf. As with all other aspects of the H-1B, our firm consults with the employer and explains the rules in understandable terms.
Labor Condition Application
The 1990 Immigration Act required employers petitioning for a H-1B worker to file a so-called “labor condition application” or “LCA” with the U.S. Department of Labor. The LCA consists of assertions that the wages to be paid the H-1B employee will be equal to or exceed the prevailing average for the occupation or that US workers will not be harmed. Contrary to popular belief, the employer is not required to prove that it could not find a U.S. worker to fill the position being offered to the H-1B employee. An LCA certified by the USDOL is required before USCIS will approve an H-1B petition. Processing times vary, but one should plan for at least 30 days.
There are numerous obligations an employer incurs by signing the LCA and making the attestations contained therein. Among these requirements, the employer must maintain certain documentation related to the LCA. Jones Fletcher will consult with human resources or other company personnel to ensure that the LCA obligations are understood and that all documentation is properly maintained.
H-1B status is valid initially for up to three years and may be extended in one or more increments up to a maximum of six years. After six years in the US, the H-1B visa holder must leave the US and spend one year outside the country before he or she can be readmitted on another H-1B. An exception to this rule exists where the worker is the beneficiary of an approved I-140 petition, in which case he or she can extend H-1B status beyond the six year maximum.
The employer filing the H-1B petition must be a “U.S. employer” as the term is understood in the immigration law. A U.S. employer is a person, firm, corporation, contractor or other association or organization in the United States with an IRS tax identification number.
The visa petitioner must maintain a valid employer-employee relationship with the H-1B visa holder throughout the petition validity period. USCIS requires that the employer have the right to control the means and manner in which the work is performed and will examine factors such as the manner and extent to which the employer actually supervises the H-1B worker, the employer’s right to control the H-1B worker’s daily work and work product, and the employer’s right to hire, pay and fire the employee.
USCIS scrutinizes the issue of the employer-employee relationship. This is especially the case in situations where the H-1B worker has an ownership stake in the petitioning company or where the H-1B worker will be assigned to a third-party worksite. In situations involving an ownership stake by the H-1B worker, the petitioner must be prepared to submit strong evidence that the employer-employee relationship nevertheless exists. In the third-party worksite situation, the employer must submit a highly detailed itinerary for the worker.
The H-1B visa entails complicated and expensive filing fee requirements. Further, the law requires that the employer pay most of these fees.
Under the current fee schedule, the base filing fee for the H-1B petition is $325. This fee must be paid in all cases.
In addition, the employer is required to pay a special education and training fee, which is $1,500 for employers with more than 25 full-time employees and $750 for those with 25 or fewer full-time employees. This fee must be paid by the employer in three situations: (1) The first H-1B for an employee; (2) a first time extension for an employee currently in H-1B status; and (3) when filing for an employee already in H-1B status with another U.S. employer. In general, cap exempt employers are also exempt from this fee.
The H-1B Visa Reform Act of 2004 requires that an employer filing its initial H-1B petition for an employee pay a special fraud detection fee of $500 under. Cap exempt employers must still pay the anti-fraud fee.
Under Public Law 11-230 certain employers must pay an additional fee of $2,000. This fee applies to employers who have 50 or more employees in the United States, of which 50% of these are in H-1B or L-1A or L-1B nonimmigrant status.
Finally, there is the optional $1,225 premium processing fee, by which USCIS guarantees initial adjudication of the petition within 15 calendar days. Generally speaking, this fee is not necessary for H-1B cap cases that are filed on April 1st because USCIS will generally adjudicate the petition well before October 1st. Further, petitions filed under standard processing can he upgraded to premium process at a later date.
Without premium processing, the filing fees for a new H-1B petition will run between $825 in the case of a cap exempt employer to as high as $4,325 for employers with high percentages of employees in H-1B and L-1 status. Most small companies can expect to pay $1,575 in filing fees. These fees are not refundable if the petition is denied. It is therefore in the best interests of both employee and employer to ensure that the petition is properly prepared.