Definition   

Equivalency Evaluations   

Minimum Requirements   

Labor Condition Application   

Duration   

Processing Times, Fees and   
Available Numbers   

DEFINITION
The most frequently obtained nonimmigrant work permit for a corporate employee is the H-1B, which is available to a person in a specialty occupation coming temporarily to the United States for full-time or part-time employment.

A specialty occupation is defined as requiring the theoretical and practical application of a body of highly specialized knowledge, as well as attainment of a Bachelor's or higher degree, or its equivalent, as a minimum requirement for entry into the occupation.

Examples of specialty occupations are engineers, computer analysts, architects, accountants, and attorneys.

If the occupation requires a license to perform the duties of the job, the alien must have that license prior to the approval of the H-1B petition.

EQUIVALENCY EVALUATIONS
If the alien has a foreign degree, an evaluation must be obtained from a recognized credentials evaluation service attesting that the foreign degree is equivalent to a Bachelor's degree, or higher, from a United States university.

If the alien has less than the equivalent of a United States university degree based solely upon his education, he or she may be able to obtain a favorable equivalency evaluation based upon a combination of education, specialized training, and recognition of expertise in the specialty through progressively responsible positions directly related to the specialty occupation.

Every three years of progressively responsible experience in an occupation which includes the theoretical and practical application of specialized knowledge required at the professional level is the equivalent of one year of university for purposes of determining education equivalency.

In a number of cases, the courts have determined that twelve years or more of progressively responsible work experience alone, without education, is sufficient to qualify for H-1B status, although the Immigration and Naturalization Service (the "INS") frequently denies H-1B petitions when the alien is relying upon experience alone, with no educational component.

Therefore, a person with a foreign degree, or a person with no university degree at all but with a combination of education and work experience, may qualify for H-1B status, while a person with only work experience and no education may or may not qualify.

MINIMUM REQUIREMENTS
A difficult question arises when it is not clear that the person's type of university degree is a minimum requirement for the particular job.

For example, a degree in Business Administration may or may not be a minimum requirement for a marketing position. If the position is for a salesperson, rather than a marketing executive, a business degree may have less chance of being regarded as a preliminary requirement.

Perhaps the answer lies in the complexity of the job duties. But what if the person offered a position as a marketing executive has a degree in Philosophy? The success of an H-1B petition also hinges on the ability to prove the connection between the university degree and the job being offered.

LABOR CONDITION APPLICATION
Before filing an H-1B petition, the employer first must obtain a certification from the Department of Labor that it has filed a labor condition application in the occupational specialty in which the alien will be employed.

The labor condition application may cover one person, or may be a "blanket" labor condition application covering as many employees as will be employed in the same job at the same geographical location.

The labor condition application must contain the title of the job to be performed, the city and state where the work will be performed, the wages to be paid, and the prevailing wage for that area.

Such wages must be the greater of the prevailing wage for the occupation in the area of employment, or the actual wage level paid to other employees of the employer with similar experience and qualifications for the same job at the place of employment.

The prevailing wage must be obtained every 36 months and is determined within 90 days of filing the labor condition application by a federal prevailing wage law, a collective bargaining agreement, a finding of a state employment agency such as the Employment Development Department in California, or by an independent authoritative source such as a wage survey which covers the location of the employer.

The employer must also attest that it will provide working conditions for the H-1B employees that will not adversely affect other workers similarly employed, including such matters as hours, shifts, vacation periods and fringe benefits.

The employer must attest that there is no strike or lockout in the occupational classification at the place of employment, and provide notice to any bargaining representative, or post notice that a labor condition application has been filed.

The employer must retain and make available for public inspection all documentation supporting the labor condition application. All records must be retained for one year beyond the period of the labor condition application, or, if a complaint is filed, until the complaint is determined.

A substantial failure to comply with the labor condition application regulations may result in a fine to the employer of $1,000 per violation, plus a debarment from all future immigration related approvals for one year.

DURATION
Status as an H-1B is granted for an initial period of up to three years. H-1B status may be extended for three additional years, except for seasonal or intermittent workers who may continue to obtain H-1B status beyond the six years.

The six year limitation also does not apply to an alien who resides for less than six months in the U.S. each year. An extension of H-1B status beyond six years also may be obtained for any employee who has filed an application for lawful permanent residence status which is at least 365 days old, where a labor certification already has been approved by the Department of Labor and a preference petition has been filed with the INS.

The labor certification, which differs from the labor condition application, ordinarily is the first step in the green card process, and the preference petition is the second step.

If an alien is subject to the six year limitation, he or she may begin a new six year period of H-1B status after leaving the United States for one year.

PROCESSING TIMES, FEES AND AVAILABLE NUMBERS
Petitions for H-1B status must be filed at one of four regional offices of the INS in the United States and typically take approximately 45-90 days to process.

If the alien is currently employed in H-1B status by another employer, he or she can commence employment immediately with a new employer once a new H-1B petition is filed with the INS, without waiting for the new H-1B petition to be approved. The petitioner must be a U.S. employer, although the alien can be paid by a foreign entity.

The filing fee to the INS for an H-1 petition is $1,130, and must be paid by the employer. If the parties wish to obtain expedited adjudication of the H-1B petition, they must pay a Premium Processing fee of an additional $1,000 to the INS, which guarantees a response from the INS, but not necessarily an approval, within 15 days of the date of filing.

In addition to paying the filing fee, the employer is responsible for the reasonable costs of return transportation abroad for the foreign worker if he or she is dismissed from employment by the employer before the end of the period of authorized admission.

The number of H-1B petitions that the INS may issue in fiscal years 2001, 2002, and 2003 is 195, 000 per year, which at present appears to be adequate to cover the demand.