H-1B Visa (Professional Worker)

H-1B status is available to those individuals whose services are sought by a U.S. employer in a “specialty occupation.”  Specialty occupations are jobs that require at least a bachelor’s degree or the equivalent in a specific field. 

This visa category provides a mechanism for employers to hire temporary professional workers and covers a variety of occupational fields that normally require a bachelor’s degree or equivalent in a professional field.  Under the H-1B visa, the company can hire a foreign national for up to six years with an option to extend this temporary status beyond the six-year limit if the company is in the process of sponsoring the foreign national for permanent residence. 

A Labor Condition Application (LCA) is required for each H-1B non-immigrant.  The purpose of the LCA is to ensure that neither U.S. workers nor foreign nationals are adversely affected by the wages and working conditions proposed in the H-1B petition.  The LCA contains basic information about the proposed H-1B employment including the rate of pay, period of employment, and work location.  By completing and submitting the LCA, the employer agrees to several attestations regarding the wages, working conditions, and benefits to be provided to the H-1B employee.  The employer must document compliance with the LCA requirements in a public access file.

H-1B Transfers

Because an approved H-1B petition is employer specific, companies that wish to hire a foreign national who already has H-1B status through another company will need to file a new petition.  Despite having to file a new petition, a company still benefits from hiring someone who already has H-1B status through a different employer:

• First, that person is exempt from the H-1B annual cap of 65,000 because he or she has been previously counted.  Any person who has been counted against the cap within six years before the approval of the petition will not be counted again unless that person has been out of the country for more than one year and would have another full six years of eligibility.
• Second, that person may be able to start working when the new H-1B petition is filed instead of having to wait for the petition to be approved.  The statute providing for the increased portability of H-1B status authorizes the new employee who previously had H-1B status to start working upon the filing of a new petition if that person has been lawfully admitted into the United States, the employer has filed a new non-frivolous H-1B petition on the person’s behalf during his or her period of authorized stay, and the H-1B beneficiary has not been employed without authorization.

H-1B Annual Cap

The annual quota of H-1B visas available has become a critical part of the H-1B filing strategy since October 1, 2003, when the temporary increase to 195,000 available H-1B visas that began in fiscal year 2001 reverted back to 65,000 beginning in fiscal year 2004.  The 2007 cap was reached only a couple months into the 2007 fiscal year and it will almost certainly be reached as quickly in fiscal year 2008.  Without legislative relief from the H-1B cap, companies will need to file new H-1B petitions on or near April 1, which is the earliest that new petitions may be filed before the new fiscal year begins each October 1.  In addition to those filed for individuals previously counted against the cap, H-1B petitions that are exempt from the cap include those filed by institutions of higher education or related nonprofit entities and by nonprofit or governmental research organizations.

Maintaining the LCA Forms and Public Access Files:

1. The Labor Condition Application (LCA) is intended to ensure that the employment of an H-1B worker does not adversely affect the working conditions of workers similarly employed in the area.  The Department of Labor (DOL) must certify the LCA before the H-1B petition may be approved by the USCIS.  To comply with DOL’s regulations for H-1B employees, the employer should take the following steps:
   
   (i)            Obtain two original, certified LCA forms and the public access file materials to be completed and maintained by your office.
   
   (ii)            Sign the LCA forms, retain one, and submit one to USCIS with the H-1B petition.
   
   (iii)            Provide notice of the filing of the LCA to the collective bargaining representative, if any.  If there is none, the employer must post notices of filing the LCA.  The two additional LCA forms or notices of filing must be posted for 10 days in two conspicuous locations at the site where the employee will work. Appropriate locations for the posting include, but are not limited to, locations in the immediate proximity of wage and hour notices. The posting must commence within 30 days of the date the LCA is filed with the U.S. Department of Labor and remain posted for ten days.
   
   (iv)            Maintain a public access file for every LCA filed. This file should be kept separate from other employment and Form I-9 records for the employee. The public access file must be maintained for at least one year after the period of employment indicated on the LCA, one year from the date the LCA was withdrawn, or, if a timely complaint is filed, until the complaint is resolved.