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Specialty Occupations (H-1b) The H-1-b visa category permits U.S. employers to hire non-US "specialty workers" in certain professional occupations and employ or train them in the United States on a temporary basis, generally up to six years. The intent behind this program is to permit US employers (and, thereby, the US economy) to benefit from the expertise provided by non-US professionals, but not at the expense of permanently displacing US workers. The law does not require a prospective H-1b employer to establish a substantive determination of need or demonstrate that suitable prospective employees are unavailable to the employer, streamlined processing can permit relatively rapid deployment of non-US employees. On the other hand, Congress has established a cap of 65,000 H-1b visas per fiscal year so that demand now far exceeds supply (although an additional 20,000 visas per year will become available in FY2005 and thereafter to advanced degree graduates of US universities). Additionally, there are numerous regulatory burdens imposed on employers that may increase cost, disclose sensitive wage and benefit information to broader scrutiny within the work force and to third parties, and create additional compliance burdens for HR staff. All told, however, the H-1b visa is a valuable and effective mechanism to enhance an employer's competitive edge by facilitating the hiring of foreign professionals. For prospective, qualified employees, the H-1b provides an attractive mechanism to secure employment authority in the United States, to bring their spouse and minor children, and to maintain the potential to adjust status to permanent residence in the future.
The law permits United States employers to petition the USCIS for authority to hire identified skilled workers for H-1b positions. A United States employer is defined as:
- a person, corporation or other business entity which engages an individual to work in the US;
- who has the power to control the work of that individual; and
- has obtained an internal revenue service tax identification number. This broad definition leaves open the possibility for one entity to hire an individual and oversee her day to day activities, while another entity, such as the US employer's foreign corporate parent, pays her salary. It also sustains the opportunity for a sole shareholder corporation to petition on behalf of its non-US shareholder to be hired as sole employee (although the USCIS may invoke other arguments to deny such petitions).
The H-1b employee must be engaged in an occupation that requires: (1) the application of a body of highly specialized knowledge; and (2) the attainment of at least a bachelors degree or equivalent experience in the specialty field. To qualify as a specialty occupation, CIS rules require a position to meet one of the following criteria:
Prospective Employee Qualifications for Specialty Occupation Prior to 1991 amendments to the immigration laws, employers were required to demonstrate that a prospective H-1b employee was "of distinguished merit and ability," but no more. In order to qualify for a particular specialty occupation undercurrent rules, an employee must hold any necessary license required by the state in which she will work, have completed a degree required for the occupation, or have experience in the occupation equivalent to completion of such a degree and achieved recognition of their expertise through progressively responsible positions related to the specialty. The USCIS may deem an individual to have achieved the equivalence of an advanced degree by a number of means, including through:
The petitioning employer must secure a Labor Condition Authorization (LCA) from the US Department of Labor. The application describes the position's title, location, wage, period of employment, location, and method of determining the prevailing wage. Most significantly, the LCA requires the employer to attest that:
The employer must commit to paying the H-1b within 30 days of her entry into the United States or within 60 days of grant of a change in status from another non-immigrant category. The employee must, as a general rule, continue to work throughout the period of employment, and the employer may not "bench" the employee, i.e., place the employee on leave but continue pay her salary. The employee will, however, be eligible for time off available under Family Leave Act protection. If the nature of the employee's position changes, such as in the event of a job promotion or transfer, the employer must seek and obtain a new LCA.
The H-1b employer must maintain certain documents (both during and after an employee's term) within a public inspection file. This file must be made available on request to persons asserting an H-1b related labor complaint, as well as to certain other interested parties. This file must include:
While Congress has placed a cap of 65,000 H-1b visas per year (which in FY 2005 was effectively exhausted on the first day of the year), the cap does not apply to cases in which an employer is seeking the extension of a previously granted H-1b petition or in cases where an employer seeks reissuance in light of an employee's job change where she is already in status. Moreover, the cap does not apply to persons who have been counted as new H-1b recipients within the prior six years provided she has not resided outside of the US for one year or more. This exemption applies even though the individual may have had an intervening change to another status and now seeks to accept H-1b employment. The cap also does not apply to certain academic and non-profit institutions seeking to hire temporary professionals. In November 2005, Congress passed legislation to expand the cap exemption to include 20,000 persons per year who have received graduate degrees (Masters Degree and higher ) from US universities. The additional visa numbers would become available in the Spring of 2005 and remain available in subsequent years. The legislation is packaged with the FY2005 Federal Budget which the President is expected to sign. The cap also does not prevent employers from pursuing other non-immigrant options that may be available, such as the use of the L-1 category, permitting intracompany transfers, or the TN classification available to citizens of Canada and Mexico. In some cases, H-2 temporary worker status may be an option. Thorough examination of the facts in each case may facilitate viable solutions to the H-1b cap problem, although the real solution remains Congress' increase in the annual H-1b allocation.
The H-1b employee is not bound to her original employer throughout the term of the petition grant. If she does change jobs, however, her new employer must file a new H-1b petition. The employee need not await grant, however, and may commence work upon the employer's obtaining proof of filing with the USCIS. In the event that the new employee must travel outside of the United States before grant of the H-1b, care must be taken to ensure she carries appropriate documentation to gain readmission to the United States in the appropriate category on return, since the original H-1b will have been terminated upon her departure from the prior position. Procedures for readmission with a pending portability petition require, among other things, that the employee be otherwise admissible, possess a valid passport, and provide proof that she was originally admitted on an H-1b visa, and proof that a renewed H-1b petition is on file and pending.
Dependents The spouse and minor children of the H-1b employee may accompany her to the United States and reside with her for the duration of the approved term. Persons in the US on H-1b dependent visas may not obtain employment within that status, but may attend an educational institution as students. They may also secure H-1b or other employment status independently. H-1b dependents also have the option of obtaining admission to the United States on business visitor (B-1) or tourist (B-2) visas (neither of which authorize employment). This may be beneficial in cases where the dependent is considering obtaining H-1b status on their own and seeks to obtain the maximum potential term. The H-1b employee may also be accompanied by her personal or domestic servant, who may continue to work in that position.
If the employer terminates the H-1b employee prior to the end of the approved term, the employer is obligated to provide return transportation abroad. This requirement does not apply where the employee voluntarily terminates early, nor does it require the employer to cover the cost of travel for the employee's dependents. While the employer may not impose a penalty on the employee's voluntary early termination, it may require the employee to agree to payment of liquidated damages to cover the employer's expenses related to the early termination. The difference between a prohibited penalty and a permissible liquidated damage provision is generally the subject of the contract law of the state of employment. Upon termination of employment, the USCIS' view is that the employee is, as of that moment, out of status and therefore required to leave the United States. USCIS rules do not recognize a grace period of ten days (a popular misconception) or of any other duration, and it is imperative that the employee in this situation act immediately and decisively to ensure that she does not jeopardize her eligibility for future immigration benefits as a result of any unauthorized overstays. Capable immigration counsel may be of great assistance at such times.
The H-1b can be extended beyond the six year maximum in cases where an I-140 petition for employment-based permanent residence has been filed and pending for 365 days or more, or if a labor certification application has been pending for that amount of time. In such cases, the H-1b employee may receive extensions of time in one year increments until the petition is acted upon. Note that the pendancy of a petition for permanent residence will not extend H-1b status that expires prior to the end of the 365 days, so it is wise to file the I-140 more than one year prior to end of the H-1b term.
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