Liu Yu and Bateman Law Firm


1.     Background and History

The Immigration Act of 1952 established a nonimmigrant class of temporary workers. Among the provisions, Congress sought to grant the Attorney General authority to temporarily admit certain alien workers, industrial, agricultural, or otherwise, for the purpose of alleviating labor shortages as they exist or may develop in certain areas or certain branches of American productive enterprises, particularly in periods of intensified production. The H-1 category included all persons of distinguished merit and ability, which was generously interpreted to include all persons engaged in occupations that require a bachelor’s degree or equivalent.


The current statute defines H-1B status as being available to a foreign national who will temporarily perform services in a specialty occupation, provided that the intending employer has obtained from the U.S. Department of Labor (DOL) a Labor Condition Application (LCA), as discussed below. This definition replaced the previous standard of distinguished merit or ability through the enactment of the Immigration Act of 1990 (IMMACT 90).


2.     Overview


The H-1B classification allows foreign nationals to accept professional assignments with U.S. employers, after the employer has obtained an LCA from the DOL. There is an annual numerical limitation of 65,000 visas for H-1B status, with an additional 20,000 H-1B visas for foreign nationals holding U.S. advanced degrees. However, a foreign national is not subject to the H-1B cap if he or she is or will be employed at an institution of higher education, a nonprofit entity related to or affiliated with an institution of higher education, a nonprofit research organization, or a governmental research organization.


An approved H-1B status may be valid for up to three years. It may also be extended for an additional period of up to three years, to a maximum of six years in H-1B status, with limited exceptions. Dependent spouses and children of H-1B nonimmigrants hold H-4 status (and are not subject to visa numbers). H-1B status is also not subject to “dual intent,” meaning that a foreign national may simultaneously pursue permanent residence while holding H-1B status. He or she may are also permitted to change employers.


3.     Specialty Occupation


The statute defines the H-1B visa classification as available for a foreign national who will “perform services … in a specialty occupation.” INA §§214(i)(1) and (3) defines the term “specialty occupation” as an occupation that requires the following:

·        The “theoretical and practical application of a body of highly specialized knowledge”

·     The “attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”


The appropriate “fields of human endeavor” for specialty occupations may include, but are “not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.”


8 CFR §214.2(h)(4)(iii)(A) provides further guidance on the requirements of a specialty occupation, where the position must meet one of the following criteria:


A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position


Consideration of a claim to such eligibility first focuses on the tasks, demands, duties, and actual requirements of the position in question. A petitioner must establish that the position realistically requires knowledge, both theoretical and applied, which is almost exclusively obtained through studies at an institution of higher learning. Also, it is not sufficient to simply establish that a bachelor’s degree or higher degree is a minimum for entry into the occupation. The position must require a degree in a specific specialty.


The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree


The petitioner should submit evidence that a degree in the specialty is commonly required by other employers in the same industry. When reviewing an employer’s historical degree requirement, “the critical element is not the title of the position or the employer’s self-imposed standards, but whether the position actually requires the theoretical and practical application of a body of highly specialized knowledge” and a degree.


The employer normally requires a degree or its equivalent for the position


For a job to be considered within the professions, it is not enough that a petitioner desires to employ a person with a degree. The degree requirement must be an industry standard in parallel positions among similar firms and institutions. In addition, it must be shown the employer normally imposes such requirement.


The nature of the specific duties [is] so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree


Depending on the nature of the petitioner’s business and operations, the duties of the proffered position could be more complex than those typically existing for the same position. Thus, a petitioner’s requirement of a bachelor’s degree may be a reasonable requirement if the petitioner can establish that the nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree. USCIS may also differentiate between positions that are entry level and those at more advanced levels.


The Administrative Appeals Office (AAO) has maintained that the criteria stated above should be read as being necessary but not necessarily sufficient to meet the statutory and regulatory definition of specialty occupation.  Thus, one must ensure that documentation and arguments are submitted supporting both the definition and at least one of the criteria.


To determine whether a particular job qualifies as a specialty occupation, USCIS does not simply rely on a position’s title. The specific duties of the proffered position, combined with the nature of the petitioning entity’s business operations, are factors to be considered. Obtaining an approved LCA in an occupational classification also does not constitute a determination by the DOL that the occupation in question is a specialty occupation.


Adjudicators will look at each case individually instead of classifying based only on the job title. The petitioner’s size is a relevant inquiry because the complexity of the duties in relation to the petitioner’s business must be analyzed.


An H-1B petition must include documentation, certifications, affidavits, declarations, degrees, diplomas, writings, reviews, or any other required evidence sufficient to establish that the services the beneficiary is to perform are in a specialty occupation. This evidence may include copies of any written contracts between the petitioner and beneficiary, or, if there is no written contract, a summary of the terms of the oral agreement under which the beneficiary will be employed.


4.     Beneficiary’s Qualifications


The mere fact that the H-1B job qualifies as a specialty occupation is insufficient to obtain H-1B status for the beneficiary. The H-1B petition must also present evidence that the alien qualifies to perform services in the specialty occupation. The beneficiary’s background will be evaluated after the adjudicator has found that the position falls within the professions.


The regulations state that the beneficiary must possess one of the following qualifications:


A U.S. bachelor’s or higher degree, as required by the specialty occupation, from an accredited college or university


The beneficiary may qualify if he or she has a U.S. bachelor’s or higher degree in a field related to the occupation. The petitioner’s industry may also be relevant in determining whether the beneficiary’s field of study is related to the occupation.


A foreign degree determined to be equivalent to a U.S. baccalaureate or higher degree, as required by the specialty occupation, from an accredited college or university


The beneficiary may also qualify if he or she has a foreign degree which is equivalent to a U.S. bachelor’s or higher degree in a field related to the occupation. Foreign degrees should be accompanied by a credentials evaluation. However, credentials evaluations are advisory only and the adjudicators are not compelled to defer to them.


An unrestricted state license, registration or certification which authorizes him or her to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment


The beneficiary’s professional licensure may also be presented as evidence for qualification for the specialty occupation. Evidence of full licensure may be required in addition to educational credentials. For some medical occupations, the beneficiary’s professional licensure alone may suffice for qualification. If a state or local license is required for an individual to fully perform the duties of the occupation, the beneficiary usually must have that license prior to approval of the petition. Please also note that when the beneficiary has a temporary license, the approval period of the petition or extension of stay application cannot exceed the validity period of the temporary license.


Cumulative education, specialized training, and/or progressively responsible experience that is equivalent to completion of a U.S. baccalaureate or higher degree in the specialty occupation, and recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.


Alternatively, a beneficiary may qualify for H-1B status without a baccalaureate degree through a combination of education, training, and work experience related to the specialty. The major aspect of this is deciding whether the quality of experience is at high enough level to qualify as “professional.”  Specifically, the H-1B petition must demonstrate the following facts:

·        The beneficiary’s training and/or work experience included the theoretical and practical application of specialized knowledge required by the specialty occupation;

·        The beneficiary’s experience was gained while working with peers, supervisors, or subordinates who have a degree or its equivalent in the specialty occupation; and

·        The beneficiary has recognition of expertise in the specialty.


To establish the beneficiary’s qualification above, the petition must include documentation, certifications, affidavits, declarations, degrees, diplomas, writings, reviews, or any other required evidence to show that the beneficiary is qualified to perform services in a specialty occupation.


5.     The Employment Relationship


Generally, the H-1B petition should provide sufficient detail that the petitioner and beneficiary are engaged in a valid employer-employee relationship, with emphasis on:


·        The petitioner’s ability to hire, fire and supervise the beneficiary;


·        The petitioner’s supervision over the overall direction of the beneficiary’s work; and


·        The petitioner’s continued right to control the beneficiary throughout the duration of the requested H-1B validity period.


This evidence may include copies of any written contracts between the petitioner and beneficiary, or a summary of the terms of the oral agreement under which the beneficiary will be employed, if there is no written contract.


If the beneficiary obtains H-1B status and is subsequently dismissed from employment by the employer prior to the end of the period of authorized admission, the petitioner is responsible to pay for the reasonable costs of the beneficiary’s return transportation to his or her last place of residence abroad.


If the beneficiary is in the United States under H-1B status and seeks to change employers, a petition may be filed on his or her behalf by the prospective new employer. If the new petition is approved, an extension of stay may be granted for the validity of the approved petition. Similarly, a petition for concurrent employment may be filed for new employment with an additional employer in the same nonimmigrant classification the beneficiary currently holds while the beneficiary will continue working for his or her current employer in the same classification.


6.     Petition Process


Ø  Filing Procedure and the Lottery System


H-1B petitions are filed using the Form I-129, Petition for Nonimmigrant Worker, and usually during the first five business days of April. This is because the earliest that an H-1B petition will be accepted by USCIS is 6 months before the start date of the approved LCA. Since the government fiscal year runs from October 1 through September 30, no LCA can begin prior to October 1st, and thus no H-1B petition will be accepted earlier than April 1st of any year.


The USCIS service center at which the petition should be filed depends upon a number of factors, including whether the petitioner is cap-exempt or cap-subject, whether the petition is an extension request without change, whether the petition is for H-1B or H-1B1 classification (for Chile and Singapore nationals), and where the primary place of employment is located.


In during the first five business days of April USCIS receives more H-1B filings than the annual cap, USCIS holds a lottery to randomly 65,000 petitions. Any H-1B petition that is received on the final receipt date and is not selected in the lottery will be rejected. The same is true for any H-1B petition received after the final receipt date. Any cap-subject H-1B petitions filed after the quota has been exhausted will be rejected, and the filing fee will be returned.


Ø  Labor Condition Application


In order to file an H-1B petition, the employer must first obtain from an LCA from the DOL, in the occupational specialty in which the alien will be employed. An LCA can be requested using the Form ETA 9035 and/or ETA 9035E.


The LCA is attestation-based, meaning that the employer makes certain promises to the DOL. The employer is also required to keep supporting documentation on file, which is to be available for public examination. This file is referred to as the public access file. In these attestations, the employer promises that:


·        It will pay the required wage – the higher of the prevailing market wage and the actual wage;

·        It will provide working conditions for the nonimmigrant that will not adversely affect working conditions of workers similarly employed;

·        There is not a strike or lockout in the occupational field at the place of employment; 

·        It has provided notice of the filing of the LCA to the applicable union representative, or if there is no such representative, has provided notice of the filing through posting in the workplace or electronic notification to employees in the occupational classification.


The DOL overseas the LCA approval process, with the Employment and Training Administration (ETA) being responsible for receiving and certifying labor condition applications.


Employers are required to pay H-1B non-immigrants the higher of the prevailing wage for the occupational classification in the area of employment, or the actual wage – the amount paid by that employer to all other individuals with similar experience and qualifications for the specific employment in question.


One can obtain prevailing wage information from the DOL’s Occupational Employment Statistics Survey (OES) wage library, which estimates wages paid in various areas of the country for some 800 occupations. Alternatively, one can also obtain prevailing wage information using government determinations, surveys or independent authoritative sources. OES wages for each occupation are usually stated in multiple levels. Determination of the OES wage level depends on consideration of the experience, education, and skill required by the employer.


Once the prevailing wage has been obtained, it must be stated on the LCA, as must the wage offered to the beneficiary. The offered wage may also be stated as a range, but the bottom of the range can be no lower than the prevailing wage. The public access file should also document the prevailing wage determination. A general description of the source and methodology is required for the public access file.


In addition, notice must be given to U.S. workers on or within 30 days before the date the employer files the LCA. The employer must give a copy of the LCA to each H-1B worker no later than the date he or she reports to the permanent place of work. The LCA process consists of the following steps:

·        Determine the prevailing wage.

·        Determine required wage (the higher of the actual wage or prevailing wage).

·        Posts the notice of the filing of the LCA (or the information therein) for 10 consecutive business days in two conspicuous locations at the place of employment.

·        Submit LCA online.

·        Prepare the Public Access File.

·        Sign the certified LCA.

Ø  The Form I-129 Petition

After receiving certification of the LCA, the H-1B petition can be prepared and submitted to USCIS. The petitioner’s support statement should summarize the job duties and the beneficiary’s qualifications. The statement should be on the U.S. company’s letterhead and signed by a representative of the U.S. company. 
The H-1B petition should be filed in duplicate, with original signatures on one set of documents, and the duplicate being a complete photocopy of the petition, including supporting documents.


Ø  Requests for Evidence


Generally, an RFE will be issued if USCIS believes that the petitioner has failed to establish prima facie eligibility for the benefit sought. A common reason for an RFE is to confirm that the petitioner has a bona fide professional job in the business. RFEs may be issued for H-1B petitions filed by small businesses for aliens with professional skills not normally associated with persons employed in such a business. The focus of the inquiry is sometimes on whether the H-1B petition is an accommodation to a relative or friend who will seek other employment, although another factor may be whether there is an agreement to work for lower wages.


The petitioner bears the burden of proof to demonstrate the need for such an employee, and that the beneficiary will not be employed in a lesser capacity and engaged in non-qualifying job duties. Therefore, the petition should include evidence of the new project or initiative that gave rise to the legitimate need for the beneficiary’s services. For example, an enterprise that owns two restaurants may seek to hire a management analyst as part of a plan to open a new restaurant.


Ø  Visa Application


Upon approval of the H-1B petition, USCIS will send the attorney or representative an approval notice and the company representative will receive a courtesy copy. With the approval notice, the foreign national may make an appointment to apply for an H-1B visa at a U.S. Embassy or Consulate abroad. If the foreign national’s previous visa has expired or “will have expired before the date of his or her intended return,” but the H-1B petition remains valid, then he or she also may use a copy of Form I-797 to apply for a new or revalidated visa during the validity period of the petition. Canadian citizens do not require visas in order to enter the United States, and may apply for admission with the H-1B approval notice and Canadian passport at a port of entry.


In addition to the general visa application documents, the following H-1B specific documents should also be presented, and individual consulates frequently have other additional requirements:


·        Original Form I-797 approval notice from USCIS;

·        Statement from the petitioner confirming that the foreign national continues to perform the H-1B assignment, if the foreign national obtained change of status from another nonimmigrant category;

·        Certified copy of the H-1B petition, to be presented only if specifically requested; and

·        Evidence of the beneficiary’s qualifications.


In addition, due to country-specific visa reciprocity schedules, a foreign national may receive a visa valid for a shorter time period than the H-1B petition, but the expiration of H-1B status should match the end date of the H-1B petition and not the end date of the H-1B visa. For example, Chinese citizens are eligible for H visas valid for no longer than 12 months. Therefore, even though the underlying H-1B petition was approved for three years, a Chinese citizen will be able to obtain an H visa that is valid for only 12 months from the date of visa issuance.


Ø  Admission to the United States


A foreign national may seek H-1B admission up to 10 days before the start date of the petition and may remain in the United States for 10 days after expiration of the petition if the I-94 card lists an expiration date incorporating this additional 10-day period, although the beneficiary may not work except during the validity period of the petition.


7.     Extensions and Time Limitations


An H-1B extension may also be filed on the Form I-129 to extend the validity of the original petition. A request for an extension must be filed before the expiration of the validity period of the original petition. Evidence of prior approvals usually do not serve as the basis for future eligibility for the extension. Prior approval of the original H-1B petition can be helpful to USCIS but does not obligate USCIS to approve a subsequent petition. When filing an extension application, the petitioner is advised to provide sufficient documentation to establish current eligibility. Derivative beneficiaries can also extend H-4 status along with the principal’s extension of H-1B status.


H-1B status may be held for a maximum of six years unless the alien qualifies for an exemption from limits on the maximum period of stay. At the end of the six-year period, the alien must either seek permanent resident status or depart the United States. A new petition will not be approved on behalf of the beneficiary until he or she has resided and been physically present outside the United States for one year, except for brief trips for business or pleasure. This also applies to an H-1B extension. Please note that periods when the alien fails to maintain lawful status also count towards the applicable limit.


8.     Sponsoring H-1B Workers for Permanent Residency


If the petitioner sponsors H-1B workers for permanent residency, certain exceptions may apply regarding the time limitations stated above. For example, if a PERM application or Form I-140 petition has been filed on behalf of the beneficiary and pending for at least one year, the H-1B status may continue to be extended in one year increments beyond the standard six-year limitation.


The H-1B worker and H-4 derivatives may also travel internationally after applying for adjustment of status. They may re-enter the United States by presenting valid H visas and do not necessarily need to apply for advance parole. The H-1B principal must be returning to resume employment with the same employer for whom he or she had previously been authorized to work as an H-1 worker.  When an H-4 dependent seeks U.S. admission, the H-1B principal must be maintaining valid H-1 status and the H-4 dependent must also remain otherwise eligible for H-4 status.


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