April 1 will once again mark the onset of “H-1B season” when employers, who have been shut out of the professional worker visas for the current fiscal year, will be able to file applications for new nonimmigrant workers to begin work on October 1, 2010. The process of preparing applications for new H-1B applicants has already begun in earnest. Although the applications cannot arrive at USCIS before April 1, the preparation time is taking longer this year, in large part because of the delays in obtaining approvals of the Labor Condition Applications (LCAs.) The LCA is a necessary part of the application and is currently taking a minimum of seven days to process on line.

Congress has limited the number of new H-1B petitions which can be issued each year. Currently, there are two numerical caps for H-1Bs: (1) A general cap of 65,000 and (2) A "Master's Cap" of 20,000 for those who possess a higher degree from a U.S. university. (And even those numbers are a little misleading.) Since the government’s fiscal year begins October 1 and the law permits employers to file their applications a maximum of six months before the start date, April 1 has become the magic filing date.

In April of 2007 and 2008, both caps were reached during the first week of April. Last year because of the economic recession, the caps were not reached until December. There is widespread disagreement about how soon the FY 2011 H-1B cap will be reached. There is no way to know for certain but most immigration attorneys are advising clients to “take no chances” and file the applications during the first week of April. A petition for a cap-subject H-1B received on or before March 31 will be rejected. If more than 65,000 petitions are received the first week, USCIS will apply the "random selection" lottery to petitions received on the first and second days as in past years.

This year, employers are urged to begin the preparation process immediately because of the recurring delays in obtaining approvals of the Labor Condition Application (LCA) a preliminary approval from the U.S. Department of Labor which is a necessary component of the application. In addition, there is some confusion as a result of a recent memo from USCIS that seeks to end the business of “job shops.” The memo requires employers to show that they "control" their employee's day-to-day tasks. The idea is prevent “employers” from hiring foreign workers and then effectively subcontracting them out to other companies. (This practice has been common in the past for certain computer programming entities.)

The United States Immigration Laws provide that a U.S. employer can obtain a nonimmigrant working visa for a foreign national professional worker. The visa is issued for a limited period of time, usually a maximum of three years, and can be renewed any number of times up to a maximum period of six years. (In some circumstances even beyond the six years.)

The key requirements of the H-1B visa are:

1. A U.S. employer
   
2. Seeks to hire a professional worker
   
3. To perform professional work
   
4. At the prevailing wage (as determined by the U.S. Department of Labor

Just as importantly is what the visa does NOT require.

1. The employer is NOT required to test the U.S. job market in most instances. This means the employer can prefer a foreign worker over an equally talented U.S. worker.
   
2. The position does not have to be for a full time position. Part time work is acceptable.
   
3. The cap only applies to new H-1B applicants. Foreign workers who have been approved for H-1B status in the past six years are not subject to the cap.

The processing of these applications is complicated and mistakes can have dire consequences so employers and foreign workers are cautioned to begin early and utilize the services of an experienced immigration attorney.

Frequently Asked Questions (FAQs)

How does the process work?

What is an LCA?

What are the filing fees?

Who pays the filing fees?

How does an applicant prove he or she has professional status?

I am graduating college in May. Can I be sponsored for an H-1B in April?

If I graduate in May and cannot start work until October 1 on an approved H-1B petition, what can I do in the interim?

How does the cap work?

How do I know if I am subject to the cap?

What types of jobs qualify for H-1B visas?

What is a “U.S. Employer”

Can the U.S. Employer be owned by foreign nationals?

What are the responsibilities of a U.S. employer in sponsoring an H-1B worker?

Does the employer have to pay the return transportation if the employee quits or is fired for cause?

What if the employee wants to change employers?

Can the H-1B worker bring his or her spouse or children?

How do I get started?

Answers

Q. How does the process work?

A. The employer must submit a completed application that includes, at minimum:

1. The appropriate immigration forms
   
2. A Labor Condition Application, certified by the U.S. DOL
   
3. The required filing fees
   
4. Proof of the proposed worker’s professional status
   
5. A letter setting forth a complete job description of the work to be performed

<- Back to Top

Q. What is an LCA?

A. The Labor Condition Application is an on-line form that must be completed by the employer (or attorney on the employer’s behalf) certified by the U.S. Dept of Labor signed by the employer and submitted with the application. The LCA includes certain legally binding promises or “attestations.” Among other things, the employer must attest that it will pay its H-1B workers the "required wage rate" and will offer prevailing working conditions to those workers.

<- Back to Top

Q. What are the filing fees?

A. There are usually three fees: the basic fee of $320; the fraud fee of $500 and the training fee of $750 or $1500. Employers with 25 or less employees pay the lower $750 training fee; employers with 26 or more employees pay the higher, $1500 fee.

<- Back to Top

Q. Who pays the filing fees?

A. The employer MUST pay the fraud fee. The other fees, including legal fees can be paid by either the employer or foreign worker BUT, if the worker pays any part of the fees it cannot bring his wage below the prevailing wage if subtracted from his salary. This means if the prevailing wage is $45,000 and the filing and legal fees are $5,000, then the actual wage paid to the worker must be at least $50,000.

<- Back to Top

Q. How does an applicant prove he or she has professional status?

A. Usually by submission of a Bachelor’s degree or its equivalent. If the applicant graduated from a U.S. college or university this is usually not a problem, a copy of the diploma will suffice. However if he or she graduated from a foreign institution, it will often be necessary to submit an appraisal from a recognized agency confirming that the applicant’s degree is the equivalent to a U.S. Bachelor’s degree. In some country’s, for example, students begin college after completing 10 years of education. In these cases, USCIS will likely consider the first 2 years of college as being the completion of high school and equate the degree to an Associate’s degree.

<- Back to Top

Q. I am graduating college in May. Can I be sponsored for an H-1B in April?

A. Maybe. If you have completed all of your course work and have no other academic activities to complete prior to graduation, USCIS will accept a letter from your school confirming your status in lieu of the actual diploma.

<- Back to Top

Q. If I graduate in May and cannot start work until October 1 on an approved H-1B petition, what can I do in the interim?

A. For most students the problem is solved through the issuance of Optional Practical Training (OPT) which allows graduates to work in their field of study after graduation. In addition, USCIS will allow individuals who currently have OPT that expires between April 1 and October 1 to extend the OPT and continue working if the employer files a petition before the OPT expires.

<- Back to Top

Q. How does the cap work?

A. The law imposes an annual limit or “cap” on the number of new admissions in the H-1B category. USCIS will not approve an initial H-1B petition once the cap has been reached. Petitions for foreign workers who already have an approved H-1B status or visa and are seeking to extend that status or switch to a different employer are exempt from the cap since they were previously counted against the cap when first approved.

The annual H-1B cap is set at 65,000. However, overall H-1B numbers are reduced by the U.S.-Chile and U.S.-Singapore Free Trade Agreements (FTAs), which set aside 6800 H-1B numbers for professionals from those two countries each fiscal year. In practical terms, therefore, just 58,200 H-1B numbers are available in the standard H-1B pool.

Legislation enacted in 2004 created an exemption from the cap for 20,000 advanced degree graduates of U.S. universities. The USCIS will exempt the first 20,000 petitions for H-1B workers who have a master's degree or higher from a U.S. institution of higher learning. After those 20,000 slots are filled, the USCIS will apply remaining advanced degree petitions into the general H-1B pool.

<- Back to Top

Q. How do I know if I am subject to the cap?

A. All foreign workers who do not have a previously approved H-1B petition within the past 6 years are subject to the cap except for a small group of cap exempt individuals.

<- Back to Top

Q. What types of jobs qualify for H-1B visas?

A. The law only specifies that the job position be for a “specialty occupation” which has been interpreted to mean a “professional” job. A professional job is one that requires at least a Bachelor’s Degree or its equivalent. According to the latest USCIS statistics, about 43% of petitions approved in FY 2005 were for workers in computer-related occupations. Occupations in architecture, engineering, surveying, education, and administrative specializations constituted another 33% of the total H-1B petitions approved in FY 2005. More than one-third of the approved petitions in 2005 (37.8%) were for aliens working as systems analysts or programmers. The second largest category (at 8.1%) was occupations in colleges and university education (i.e., university professors and teachers). Accountants, auditors and related occupations constituted another 4.6% of the total, electrical/electronics engineering occupations comprised 3.8% of the total, and other computer-related occupations comprised 3.5% of the total H-1B petitions approved.

The latest statistics also reveal that 45% of petitions approved in FY 2005 were for workers with a bachelor's degree. 37% of petitions approved in FY 2005 were for workers with a master's degree, 5% had a doctorate, and 12% were for workers with a professional degree (such as a medical or law degree).

<- Back to Top

Q. What is a “U.S. Employer”?

A. 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.

<- Back to Top

Q. Can the U.S. Employer be owned by foreign nationals?

A. Yes

<- Back to Top

Q. What are the responsibilities of a U.S. employer in sponsoring an H-1B worker?

A. The U.S. employer must file with the U.S. Dep’t of Labor (DOL) a labor condition application (LCA) including certain legally binding promises or “attestations.” Among other things, the employer must attest that it will pay its H-1B workers the "required wage rate" and will offer prevailing working conditions to those workers. The employer must also attest that a strike or lockout is not in progress with regard to the occupational classification at the place of employment, and that notice of the LCA filing has been given to its employees.

The employer has several obligations which continue even after the filing of the LCA with the Department of Labor. These include:

1. Public inspection file. The employer must provide the LCA and other documents for public inspection to any interested party, and these documents must be maintained by the employer for one year after the termination of employment of the last alien worker under that LCA. The employer must keep up-to-date in the public inspection file the information regarding current rate of pay for the alien workers admitted under authority of the LCA.
2. Maintaining other documentation. In addition to the information in the public access file, the employer must also be prepared to make available to DOL investigators basic personnel and payroll information regarding all workers in employment similar to that described in the LCA if a complaint is filed.
3. Strike or lockout notification. The employer must also notify the DOL within three days of the commencement of a strike or lockout involving its workers in the occupation at the place of employment.
4. Additional work sites. If the worker is to perform work at other locations the employer must take additional steps depending on the location of the other job sites and the nature of the work to be done there.
5. Material Changes in Employment. The employer is required to file an amended H-1B petition with the USCIS when there is a material change in the employment originally approved by the USCIS. Material changes requiring amended petitions include a significant change in the job duties to be performed by the H-1B worker, or a major shift in salary. The Service also takes the position that if a new LCA must be filed to cover work sites that were not listed in the original LCA, a material change has occurred in the employment requiring that an amended H-1B petition be filed.
6. Return Transportation. Employers must pay the return transportation for H-1B workers whose employment is terminated prior to the expiration of the authorized period of stay, even if the cause of termination is beyond the employer's control.

<- Back to Top

Q. Does the employer have to pay the return transportation if the employee quits or is fired for cause?

A. If the worker voluntarily leaves the employment the employer does not have to pay the cost of return transportation. The employer is also relieved of that obligation if the employee fails or refuses to return home. This obligation is only owed to the worker and not his or her spouse or children. The employer is still obligated to pay these costs if the employee is terminated for cause.

<- Back to Top

Q. What if the employee wants to change employers?

A. The approved H-1B petition allows the foreign worker to work only for the employer who filed the petition. If the H-1B worker changes employers, the new employer must file a new H-1B petition. It is important to note, however that the H-1B worker may begin new employment upon filing of the H-1B petition, rather than waiting for approval of the application. The worker must already have been approved for H-1B status, lawful admittance, engagement solely in authorized employment, and a nonfrivolous petition by the new employer before the expiration of authorized stay.

<- Back to Top

Q. Can the H-1B worker bring his or her spouse or children?

A. If the H-1B worker’s spouse and family are legally in the U.S. they should be granted derivative H-4 status. Qualifying family members include the spouse and unmarried children under 21 years old. Family members are admitted for the same period of time for which the principal family member is admitted. If the family is back home, the consulate will make the final decision whether to issue the visas or not. Generally this is not a problem.

<- Back to Top

Q. How do I get started?

A. Thought you would never ask. Contact us at mczwaik@zwaik.com.

<- Back to Top