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Requirements for the H-1B specialty worker visa

By BOYD F. CAMPBELL
Attorney at Law and Civil Law Notary

    If you qualify as a specialty worker, or you are a U.S. employer that needs the help of specially trained foreign nationals, you need to know about the H-1B nonimmigrant, temporary employment visas for professionals and specialty workers.
    The October, 2000, American Competitiveness in the Twenty-First Century Act provided for 195,000 H-1B visas for each of the next three fiscal years (2001, 2002, 2003).  An article about the new Act in question-and-answer format appears below.  On September 30, 2003, certain provisions of the AC21 Act expired.  One of those provisions concerned the $1,000 fee, which is no longer required.  The most important provision that expired concerns the 195,000-visa cap, which reverted to 65,000 for Fiscal Year 2004, beginning October 1, 2003.
    This article describes the requirements and procedures to get H-1B visas.  H-1B specialty worker visa petitions are filed with Citizenship and Immigration Services (CIS, (formerly the Immigration and Naturalization Service) by U.S. employers who want the temporary services of people whose work requires a bachelor's or higher degree in a specific occupational specialty.
    These fields of include most computer science jobs, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, the arts, and many teaching jobs.
    CIS may grant H-1B visa status for a maximum of three years, with one extension of up to three years, for a total of six years. However, an employer can request an H-1B visa for less than three years, and employment may be part-time. The immigration lawyer's office prepares the necessary forms and other supporting documentation for the employer and the alien that will be filed with CIS and the U.S. Department of Labor (DOL), including affidavits from the U.S. employer, based upon information provided to the lawyer by the employer.
    The basic information required for an H-1B petition includes the date the U.S. employer was established and its Internal Revenue Service (IRS) employer ID number, the total number of its employees, its most recently reported net and gross annual income, a detailed description of the specialty worker's proposed job, the specialty worker's salary, and the approximate value per week of the benefits (i.e., health insurance) the specialty worker will receive.
    On July 30, 2001, the INS began offering "premium processing" for H-1B visa petitions.  Under this new program, the petitioning employer may pay a $1,000 fee in exchange for 15-day processing of their petitions or applications.  In the interests of time, many of my corporate clients pay this fee for fast service.  I have found this new program to be very sound.
    Without premium processing, CIS Service Centers are taking from four to six months from the date a petition is filed to grant or deny an H-1B petition.  Foreign nationals in the United States who have not worked without authorization or who have not otherwise violated their current immigration status can change their visa classification to H-1B in the United States. Foreign nationals who have violated the terms of their current immigration status and persons outside the United States must secure their H-1B visa abroad at a U.S. consulate. Changes to the law governing H-1B visas -- and they occur frequently -- spell out new requirements that often take as long as two weeks to satisfy, and which must precede the filing of an H-1B petition.

Processing a Labor Condition Application and H-1B visa petition

    1.  We prepare and file a Labor Condition Application (LCA) with DOL on behalf of the employer prior to submitting the H-1B petition to the INS.  The LCA certifies that the specialty worker will be paid the higher of two specific wage levels: the "prevailing wage," which is determined by the local State Employment Security Agency (SESA), sometimes in response to the employer's own wage survey, and the "actual wage," which is determined by comparison to all other workers in similar jobs at the specialty worker at the employer.  We help employers obtain "prevailing wage" determinations and documentation; we also provide written instructions for the employer to use in determining the "actual wage."  The SESA's prevailing wage determination may be challenged by competent, authoritative wage data and other evidence.
    2.  We direct the employer to post the LCA in two conspicuous places where the services are to be performed so that U.S. workers may know that you intend to file an H-1B petition on behalf of a specialty worker. Penalties, including back pay, are provided in the event an employer makes a misrepresentation of fact on an LCA.
    3.  The employer must state that it will pay for the specialty worker's "return transportation abroad" in the event the specialty worker is terminated before the expiration of his or her visa status. The rules of the INS governing this requirement lack an enforcement provision, and they do not indicate to whom the cost of transportation must be paid. Although INS has indicated little interest in enforcing this provision, it is part of the law.
    4.  The employer must keep the LCA and prevailing wage/actual wage documentation on file. We will provide the employer with those materials and with instructions regarding their retention.
    5.  The employer must pay the CIS filing fees of $130, under the new regulations.  We prepare first drafts of all required documents for the employer's review, revision, and approval.  When the employer approves the final documents, the lawyer files the petition and supporting documentation with the Department of Labor and the CIS and will followup with those agencies to insure prompt adjudication.

If the H-1B visa beneficiary is overseas

    H-1B beneficiaries who are overseas will go to the U.S. consulate to get an H-1B stamp in their passport before they will be allowed to enter the United States in the temporary visa status and begin work for the U.S. employer. Even those employee- beneficiaries who are eligible to work without obtaining a visa stamp abroad should get an H-1B visa stamp in their passport before they travel abroad so they will be able to re-enter the U.S. and continue their employment.
    The first step a foreign national should take in pursuing the H-1B visa is to get an offer of temporary employment from a U.S. employer.  Please note that the Act was amended by adding language that changed the way prevailing wages are determined with respect to certain organizations.  In computing the prevailing wage level for an occupational classification in the case of an employee of an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965), or a related or affiliated nonprofit entity, or a nonprofit research organization or a governmental research organization, the prevailing wage level shall only take into account employees at such institutions and organizations in the area of employment.
    With respect to a professional athlete when the job opportunity is covered by professional sports league rules or regulations, the wage set forth in those rules or regulations shall be considered as not adversely affecting the wages of United States workers similarly employed and be considered the prevailing wage.

Questions and answers about the American Competitiveness in the Twenty-First Century (AC21) Act

Question.  How does AC21 affect the H-1B cap?
Answer.  Section 214(g) of the Immigration and Nationality Act (Act) sets an annual limit on the number of aliens that can receive H-1B status in a fiscal year. For FY2000 the limit was set at 115,000. AC21 increases the annual limit to 195,000 for 2001, 2002 and 2003. After that date the cap reverts back to 65,000.
Q.  Are there new exemptions to the H-1B cap?
A.  Yes. In addition to increasing the cap, AC21 exempts H-1B workers who are employed by or have an offer of employment from institutions of higher education, related or affiliated nonprofit entity, or nonprofit or government research organization.  AC21 also specifies that an H-1B worker be counted against the cap if the worker transfers from an "exempt" employer to an employer that does not have an exemption.  In addition, the FY 2001 cap does not include H-1B petitions filed after INS reached the FY 2000 cap on March 22, 2000, but before September 1, 2000.  INS estimates that approximately 30,000 petitions were filed during that time frame.
Q.  How does INS plan to adjust its current counting method so that any petitions filed prior to September 1, 2000 will not count against the FY2001 cap?
A.  The INS already electronically captures the date a petition was received by INS.  Therefore, our ability to electronically separate cases file before September 1, 2000, is already in place.
Q.  What steps has INS taken to improve its counting to ensure that multiple beneficiaries are only counted once as required by the new law?
A.  The INS has conducted sweeps of the H-1B data to identify multiple beneficiaries to ensure that they are counted toward the cap only once in past fiscal years.  It will continue with that process insuring that it conducts the sweep on using H-1B data for the past six years.
Q.  The bill requires that INS may not count someone toward the cap if they have had H-1B status in the prior 6 years, unless the individual would be authorized for a new 6-year period of stay.  How is INS going to implement this?  How does this differ from INS’ current counting methodology?
A.  INS is revising its regulations to explain when an H-1B worker is eligible for a new 6-year period of stay.  System changes will be made in order to allow the adjudicator to indicate whether an individual who was previously H-1B is now eligible for a new 6-year period of stay.  This indicator will enable the INS to properly count an individual toward the cap in these circumstances.  Upon approval of the petition, the program will compute the number of H-1B visas issued according to the factors as defined by statute.
Q.  The legislation states that the limit for FY1999 is increased by "a number equal to the number of aliens issued such a visa or provided such as status" from the time the limit was reached and September 30, 1999.  Is INS interpreting this clause to deal solely with the discovered overage or does INS intend to recapture any visas it issued before September 30, 1999 but had given FY2000 start dates?
A.  The INS interprets this language as forgiveness for the number of H-1B petitions approved in excess of the FY1999 cap due to counting errors.  INS will not recapture numbers for cases approved in FY2000 toward the FY2000 cap.
Q.  When does the law take effect?
A.  Almost all of the provisions of AC21 and the related legislation are effective immediately upon enactment.  The law was officially enacted on October 18, 2000.  The sole exception is the increase in H-1B petitioner fee from $500 to $1000, which takes effect on December 17, 60 days after enactment.
Q.  Are there new exemptions from the ACWIA (now $1,000) fee?
A.  Yes. Employers now exempt from paying the fee include institutions of higher education and related or affiliated non-profit organizations; non-profit or governmental research organizations; any employer who is filing for a second extension of stay for an H-1B nonimmigrant; primary or secondary education institutions; or nonprofit entity engaged in "established curriculum-related clinical training of students".  Although the fee increase does not take effect for 60 days, the new exemptions from the fee are effective immediately. Thus the new exempt organizations are exempt as of October 18, 2000.  INS is working to change its forms and systems to accommodate this change but this will take time. In the meantime, petitioners claiming to be exempt should submit a copy of the relevant provision of AC21 with their petition along with evidence that they qualify as an exempt organization.  Petitioners should also note on Form I-129W the basis for the exemption, notwithstanding the fact that the form will not initially contain the necessary boxes to check for these new exemptions.
Q.  Are there any new filing exemptions?
A.  Yes.  An amended H-1B petition is no longer required when the petitioning employer undergoes a corporate restructuring, including but not limited to a merger, acquisition or consolidation, where the new corporate entity succeeds to the interest and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner.
Q.  Who is eligible to use the H1B "portability" provisions?
A.  The portability provisions allow a nonimmigrant alien previously issued an H-1B visa or otherwise accorded H-1B status to begin working for a new H-1B employer as soon as the new employer files an H-1B petition for the alien.  Previously, aliens in this situation had to await INS approval before commencing the new H-1B employment.  These provisions apply to H-1B petitions filed "before, on, or after" the date of enactment, so all aliens who meet this definition can begin using the portability provisions.
Q.  Are there any other limitations on the portability provisions?
A.  An alien must have been lawfully admitted into the United States.  The new employer must have filed a "non-frivolous" petition while the alien was in a period of stay authorized by the Attorney General.  A non-frivolous petition is one that has some basis in law or fact. INS plans to further define this in its implementing regulations.  Subsequent to such lawful admission, the alien must not have been employed without authorization.
Q.  How will employers who hire H-1B aliens using the portability provisions comply with their I-9 requirements?
A.  Current regulations authorize employment with the existing employer after a request for extension of H-1B status is filed.  The alien in this case is employment authorized but the I-9 form contains no provision for this authorization. Employers should follow the documentation procedures they currently use for an extension of this sort. Typically, this could involve attaching a copy of the receipt notice for the filed petition along with a copy of the alien's I-94 to the I-9 kept on file.
Q.  What benefits are available under AC21 to aliens with Immigrant petitions/adjustment applications?
A.  First, AC21 lifts the per-country limits on employment-based immigrant visa numbers if the total number of visas available during a calendar quarter exceeds the number used.  The Department of State is charged with issuance of these visas and maintenance of priority dates and availability.  This issue will not be addressed in INS regulations.  Where the country caps delay an alien's immigration notwithstanding this provision, AC21 also provides for an extension of H-1B status until the alien's adjustment of status application can be processed and a decision made.  Finally, AC21 gives extensions of H-1B status in one-year increments to H-1B aliens who have an employment-based immigrant visa petition or application for adjustment of status pending if It has been more than 365 days since the visa petition or the labor certification application has been filed. Note that the adjustment application, labor certification, or visa petition need not necessarily have been pending for a year to obtain this benefit.  The only requirement is that 365 days have passed since filing of the labor certification or immigrant visa petition.
Q.  Will H-4 dependents of H-1B nonimmigrants be able to receive these extensions?
A.  The AC21 does not address this issue but speaks only of aliens issued a visa or otherwise provided nonimmigrant status under the H-1B provisions of the Act.  INS is studying this issue, which will be addressed in the implementing regulations currently under development.
Q.  How will employers demonstrate I-9 compliance for H-1B aliens granted extensions beyond the six-year period?
A.  Current regulations authorize employment with the existing employer after a request for extension of H-1B status is filed.  The alien in this case is employment authorized but the I-9 form contains no provision for this authorization.  Employers should follow the documentation procedures they currently use for an extension of this sort.  Typically, this involves attaching a copy of the receipt notice for the extension along with a copy of the alien's I-94 to the I-9 kept on file.
Q.  The law requires that any visas revoked due to fraud are recaptured and restored to the total available for the current fiscal year.  How does INS intend to do this?
A.  INS already has the ability to electronically identify those cases that are revoked due to fraud as opposed to those that are revoked for other reasons. Therefore, this should not be an issue.
Q.  The law mandates INS processing times of 180 days. Given the current budget situation does INS feel that it can realistically meet this goal?
A.  The new law does not mandate any processing times.  It does, however, indicate that it is the sense of Congress that adjustment applications should be completed in no more than 180 days and nonimmigrant petitions should be processed in no more than 30 days.  This sense of Congress is followed by recognition that INS is in need of appropriations for infrastructure and other improvements.  INS will in the process of collecting data in an attempt to comply with the reporting requirements necessary to be eligible for consideration of appropriations that may be granted to aide in the reduction of processing times.  There is no guarantee that Congress will appropriate funds for the improvements necessary to reduce backlogs and improve processing time within the Service even if INS complies with all of the reporting requirements set forth in the statute.
Q.  Given the large increase in the volume of applications, does INS feel that it can maintain its current processing goals of 60 days for H-1B petitions and 90 days for I-140 petitions given that Congress has only earmarked 4 percent of the new H-1B fee for INS processing?
A.  The INS will do its best to maintain current processing times.  Much of its ability to maintain the processing times will be a result of the budget that is passed and its ability to direct overtime funds to the offices that will be impacted by the increased filings.  Although INS has been authorized to hire individuals into term positions to deal with the increased filings, the hiring and training process are lengthy and the true benefits of the hiring will not be realized for several months.

    WARNING:As a foreign national, you may not accept an offer of employment in the United States unless you are authorized to do so by the INS. The second step involves the immigration lawyer. In my law offices, I require prospective clients, whether they are U.S. employers or foreign nationals, to fill out a questionnaire for us that helps us to evaluate the situation and serve our clients better. If you are within the United States and would like to know more about this visa, you may call the Immigration Law Center, at (334) 832-9090.  If you would like to get the name of a U.S. immigration lawyer near you, please call the American Immigration Lawyers Association in Washington, D.C., at (202) 216-2400.

    Boyd F. Campbell is a member of the American Immigration Lawyers Association (AILA), and the Alabama State Bar.  He has served as Chair of the Immigration Law Committee of the American Bar Association's General Practice Section and was a member of the ABA's International Law Section.  He was a member of the ABA's Coordinating Committee on Immigration Law from 1994 to 1998.  Mr. Campbell served as Chair of the International Law Section of the Alabama State Bar from 2000 to 2002.  He was selected for inclusion in The Best Lawyers in America Consumer Guide: Best Lawyers.  Access to Best Lawyers is by subscription.  Mr. Campbell is Alabama's first practicing civil law notary, having been appointed to this official position by the Alabama Secretary of State in August, 2001.

Questions or comments about this article may be directed to:
Immigration Law Center, L.L.C.
P.O. Box 11032
Montgomery, Alabama 36111-0032 USA
Telephone:  (334) 832-9090
E-mail: CLICK HERE

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