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Matthews Immigration Group | Raleigh Law Firm | H-1B / H-1B1 / E-3

H-1B / H-1B1 / E-3 Visas

Generally, a citizen of a foreign country who wishes to enter the United States must first obtain a visa, either a nonimmigrant visa for a temporary stay or an immigrant visa for permanent residence. The visa allows a foreign citizen to travel to a U.S. port of entry and request permission of the U.S. immigration inspector to enter the United States. Nonimmigrant visas ("NIVs") are issued to individuals who intend to remain in the United States temporarily. NIVs are designated by letters of the alphabet. The type of visa a foreign national is issued depends principally upon the nature of the foreign national's proposed activities in the United States, the duration of those activities, and in some instances, his or her nationality. It is often easiest to understand NIVs and their limitations, criteria, and characteristics by distinguishing them in terms of the principal activity authorized by the visa: (a) employment-based NIVs; (b) NIVs for students and exchange visitors; (c) NIVs for business visitors and tourists; and (d) other NIV categories including diplomats, international civil servants, and family relatives.

Temporary worker visas are for persons who want to enter the United States for employment lasting a fixed period of time and are not considered permanent or indefinite. Most of these visas requires the prospective employer to first file a petition with the U.S. Citizenship and Immigration Services ("USCIS"). An approved petition is required to apply for a work visa.

Specialty Occupation Professionals

(H-1B)

 

The H-1B visa category is designed to allow foreign professional workers to be employed by a U.S. employer in a "specialty occupation" for a specified period. It is a highly favored temporary visa category for employers in need of skilled professionals; however, its availability is seriously limited as there is an annual cap applied to H-1Bs. Please see the section below on the H-1B Visa Cap for more information.

 

H-1B visas are available only to foreign nationals who are qualified to work in a "specialty occupation," and who are coming to the United States to work in a specialty occupation. In essence, this means that the foreign national must possess at least a four-year bachelor's degree (or the equivalent) in a specific subject related to the proposed employment and the employment must typically require a bachelor's degree in the specific discipline, or a closely related field, as a minimum entry requirement. Eligible fields of endeavor include, but are not limited to, most computer science positions, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and other positions that require a degree of a combination of education and experience in a field related to the position's duties. Because an H-1B position requires a specific degree or educational background, foreign nationals possessing liberal arts degrees may have difficulty qualifying for an H-1B visa. Foreign nationals who have substantial specialized work experience may qualify for the equivalent to a four-year bachelor's degree by demonstrating three years of specialized professional experience for each year of university-level education that they lack. For positions requiring licensure (e.g., securities dealers, clinical healthcare providers, attorneys), the foreign national must typically possess a permanent license before the H-1B can be approved. The employer must be a U.S. employer, with an IRS-issued federal employer identification number. A substantial change in the employer's ownership or legal organization through sale, merger, or reorganization may require the filing of a new H-1B petition. The H-1B is for employees, not independent contractors or consultants. There must be an employer-employee relationship in which the sponsoring employer has the right to hire, pay, terminate, supervise, or otherwise control the work of the H-1B employee. (Please note that there is no visa category for independent contractors.)

 

H-1B status requires pre-approval by the CIS of a petition filed by the employer on behalf of the prospective employee. Once the the CIS approves the petition, a consular officer overseas may issue an H-1B visa. The foreign national can then seek admission to the United States in H-1B status to work for the employer in the position indicated in the petition.

 

Foreign nationals already in the United States may, in certain circumstances, apply to change their nonimmigrant status to H-1B. The employer would need to file a petition with the USCIS on behalf of the foreign national requesting a change to H-1B status.

 

The H-1B petition process requires approval by both the U.S. Department of Labor ("DOL") and the USCIS. The DOL component requires the filing of a Labor Condition Application ("LCA") and obtaining certification of the LCA prior to filing the H-1B petition with the USCIS. The LCA contains a set of attestations by the employer designed to ensure that the hiring of the H-1B employee will not have a negative impact on the wages or working conditions of the employer's U.S. workforce, and that the foreign worker will not be exploited. The attestations include commitments that the employer will pay the H-1B employee the higher of the actual wage or the prevailing wage for the occupation and location; the employer is providing the H-1B worker the same or similar working conditions as it provides to U.S. workers; and the employer is offering the H-1B worker the same benefits, or access to the same benefits, as it offers to similarly employed U.S. workers. Finally, the LCA includes an attestation that it has notified affected workers, either through a bargaining representative or a posting notice, that an H-1B worker is being hired. The DOL regulations require H-1B employers to make available to the public certain documentation related to these attestations and to maintain other related documentation in the event of an investigation or audit by the Wage and Hour Division of the DOL. This material should be maintained in a "public access file" separate and apart from personnel records. Once the LCA has been certified by the DOL, the employer may file the H-1B petition with the USCIS. The validity of the LCA is limited to the occupation and job site(s) referenced on the LCA. If an employee is relocated and/or his or her job duties change, a new LCA and amended H-1B petition may be needed.

 

Preparation and filing of the H-1B petition with the USCIS requires careful attention to the substantive requirements for H-1B eligibility and involves submitting supporting material that demonstrates the bona fide nature of the specialized job offer, the foreign national's eligibility for H-1B status, and the foreign national's qualifications for the position offered.

 

The petition is filed by the employer at the USCIS Service Center having jurisdiction over the place of employment. Processing times for the petition vary greatly. During this period, employees who are eligible for H-1B portability (see below) may work for the sponsoring employer; however, special considerations are required if international travel is contemplated while the petition is pending.

 

As an alternative to standard processing of the H-1B petition, the employer may elect to pay an additional filing fee for "premium processing" of the petition. This additional fee guarantees a response within 15 calendar days. Usually the response is in the form of an approval or denial; however, the response may also be a Request for Additional Evidence ("RFE").

 

H-1B workers are only authorized to work for the petitioning employer. Any other employment would constitute a violation of H-1B status. Two or more employers may petition for the services of the same H-1B worker, and the worker may perform services for these employers simultaneously. In addition, employers may petition for part-time H-1B workers. There is no minimum number of hours that an H-1B visa holder must work.

 

As a general rule, H-1B employment may commence only after approval of the H-1B petition. An exception exists for foreign nationals who seek to change H-1B employers and who are in valid H-1B status without any lapse in employment with their current employer. The foreign national is authorized to begin working for the new employer at the time that the new employer files a new H-1B petition. It is not necessary for the employee to wait for approval of the H-1B petition. This is referred to as "H-1B Portability."

 

H-1B status is generally limited to a total of six years. It is possible, under limited circumstances, to extend H-1B status beyond the six-year limit. H-1B status may be extended beyond six years, in one-year increments, if a labor certification application or immigrant visa petition has been filed on behalf of the employee and has been pending for at least one year. In practical terms, this means that employers must file a LCA prior to the end of the H-1B employee's fifth year in H-1B status. H-1B status may also be extended in three-year increments if the employee has an approved Form I-140 but his or her priority date is not current. It is possible to recapture time spent outside the United States while in H-1B status and to add that time onto the six-year limit.

 

Currently, the number of H-1B visas available on an annual basis is 58,200 (65,000 minus 6,800 set aside for H-1B1 visas for nationals of Singapore and Chile (see below)), plus an additional 20,000 reserved for those who have received a U.S. master's or higher degree. New visa numbers become available at the start of the fiscal year on October 1. Absent congressional action to raise the H-1B cap, there will continue to be a shortage of H-1B visas. The cap applies to all new petitions for H-1B status, including changes of status to H-1B. The cap does not apply to extensions of existing H-1B status since an extension of status does not involve allocation of a new visa slot and therefore does not apply in cases of H-1B portability. Certain classes of H-1B petitions are exempt from the cap, including petitions on behalf of a foreign national who: (a) is maintaining or has held H-1B status within the past six years, and is not eligible for another six-year stay by virtue of having departed the United States for one year or more; (b) will work for an institute of higher education or a related or affiliated nonprofit; or (c) will work for either a nonprofit or a government research organization.

 

The spouse and children of an H-1B visa holder are eligible for H-4 dependent status. H-4 status allows the family members to remain in the United States, as well as to study; however, it does not include employment authorization except under limited circumstances.

Free Trade Agreement (FTA) Professionals - Chile + Singapore

(H-1B1)

To work in a specialty occupation. Requires a post-secondary degree involving at least four years of study in the field of specialization. (Note: This is not a petition-based visa.)

 

These visas are limited to 6,800 (1,400 for Chileans and 5,400 for Singaporeans) annually. As with the E-3 and H-1B, it is reserved for individuals from these two countries who will work in a specialty occupation. Please see the section above on H-1Bs for more information regarding the term "specialty occupation." No prior USCIS approval is required for the H-1B1 and nationals of these two countries can apply directly at a U.S. consulate. A certified LCA is required as part of the application. Please see the section above on H-1Bs for more information regarding LCAs. H-1B1s are issued in one-year increments and while there is no limit on the number of extensions that may be obtained, H-1B1 holders (unlike H-1B holders) do not qualify for dual intent and must therefore prove an intention to return to their home countries.

Free Trade Agreement (FTA) Professionals - Australia

(E-3)

The process of obtaining a U.S. work visa is easier for many Australian citizens and their employers because Australian citizens are the only individuals who are eligible to apply for E-3 temporary work visas. There are 10,500 E-3 visas available each year, the majority of which are never issued.

 

Similar to an H-1B visa, E-3 visas are available to eligible Australian citizens who seek to work temporarily in the U.S. for an employer who agrees to pay the employee the prevailing wage for the position offered, provided that the job is a "specialty occupation."

 

In order to sponsor an Australian citizen for E-3 status, an employer first must obtain an approved LCA from the DOL. For E-3 visa classification, the DOL has proposed to define an employer as a "person, firm, corporation, contractor, or other association or organization in the United States that has an employment relationship" with the E-3 worker.

 

The LCA requires the employer to agree to meet "prevailing wage" requirements and to pay the worker at least the actual wage paid to other employees in similar positions. The prevailing wage is defined by the DOL as being the wage paid to workers in a specific job category within a specific geographic region based upon a DOL determination or another "authoritative source" (e.g., a geographic-specific salary survey published within the past two years). There are additional requirements associated with an LCA, including the requirement that a notice must be posted for 10 business days at the job site. This notice must state that the employer intends to hire an E-3 specialty worker, and the employer must state the salary offered, or a salary range, provided that the low end of the salary still meets the prevailing wage. As part of the LCA process, employers are required to document that they have complied with the attestations listed on the LCA. Although none of this documentation needs to be submitted to the DOL with the LCA, some of it must be available for public inspection while the rest must be maintained for review in the event of a DOL investigation.

 

The LCA application may be submitted to DOL electronically and approval is almost instantaneous, when properly filed. The filing of a LCA does not require DOL's confirmation that the employer's wage source meets DOL's criteria. The employer only needs to refer to the wage source that it relies upon when submitting the LCA.

Moreover, DOL's approval of the LCA does not mean that the wage source satisfies DOL's requirements. Employers must ensure that salaries to E-3 workers comply with DOL prevailing wage requirements. DOL has authority to audit E-3 files for 3 years after the filing of the LCA.

 

Under the Immigration Nationality Act, a specialty occupation is defined as an occupation that requires: (a) theoretical and practical application of a body of highly specialized knowledge, and (b) 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.

 

To apply for an E–3 visa, an Australian citizen must schedule an interview at a U.S. Consulate. In Australia, E-3 applications are required to submit E–3 visa applicants to the U.S. Consulate with jurisdiction over the applicant's place of residence. U.S. Consulates outside of Australia have the discretion to accept E-3 visa applications. However, nonimmigrant visa applicants are generally discouraged from applying for visas in third-world countries. The E-3 visa classification is attractive to Australian citizens who meet the requirements for a variety of reasons: Filing fees for E-3 visa classification are significantly lower than the H-1B and spouses of E-3 employees are eligible to apply for work permits upon admission to the United States in E-3 status.

Limitations on the Number of New H-1B Visas Available Each Year

There is an annual limit of 65,000 new H-1B visa petitions per year. Employers currently preparing H-1B petitions for the subsequent fiscal year availability may submit these visa requests no earlier than six months prior to the anticipated start date. Since every fiscal year begins on October 1st the earliest that a new H-1B visa petition may be filed for the following fiscal year is April 1st. Since 2005, H-1B visas have become unavailable earlier and earlier in the fiscal year. In recent years, more than double the number of petitioners eligible under the bachelor's degree cap have been received on the first day of filing.

Fortunately, there are several types of employers and individuals that are not subject to the annual cap. Employees of colleges and universities - and their related or affiliated non-profit entities - non-profit research organizations, and government research organizations are exempt from this cap. Individuals not subject to the annual cap are those presently in H-1B status, those who previously held H-1B status within the past six years and have not left the U.S. for more than one year after attaining such status, and physicians who hold J-1 status and have received a waiver of the two-year home residence requirement pursuant to the Conrad Waiver Program. Moreover, there is an exemption from the annual cap for 20,000 individuals who have earned a Master's or higher degree from a U.S. college or university.

Basic Employer Information Required for H-1B Petition

  • Date the employer's company or organization was established.

  • The employer's IRS employer ID number.

  • The total number of employees at the employer's place of business.

  • The employer's net and gross annual income, or, if a non-profit organization, the employer's annual budget.

  • The specialty worker's job title and a detailed description of the proposed job duties.

  • The specialty worker's salary.

  • The approximate value per week and a description of the benefits (i.e., health insurance) the specialty worker will receive.

  • The name and title of the person who will sign the required forms on behalf of the employer.

  • Information about the petitioner and the types of services it provides (e.g., a company brochure or other literature, if available).


The company must be able to demonstrate the ability to pay the salary offered to the H-1B employee and therefore, companies with fewer than 100 employees or newly formed companies may be required to show extensive documentation to establish this. In these cases, tax returns are the best evidence although alternative evidence often is acceptable.

Basic Employee Documentation Required for H-1B Petition

  • Legible copies of all college, university diplomas or other higher education documents. Copies do not need to be certified for authenticity. Copies may be faxed to us initially but hard copies must be sent by mail. Degrees should be sent to us first and immediately because we must have some foreign degrees evaluated for their U.S. equivalency before an H-1B petition can be filed.

  • Copies of transcripts from colleges, universities, or other  institutions  of  higher  learning should be sent to us as soon as they are available because sometimes they are necessary and on other occasions they are useful.

  • The prospective H-1B employee' s curriculum vitae or resume.

  • Copies of the prospective H-1B employee ' s current passport, I-94 Arrival/Departure card (if in the U.S.), and any U.S. immigration documents . If the spouse and/or children will accompany this individual in H-4 status , copies of their current passports and 1-94 Arrival/Departure cards are also required. Please note that those in H-4 status are not permitted to work.

  • If already working in the U.S., copies of most recent pay stubs from the current employer to evidence maintenance of status.

  • A prospective H-1B employee may be ineligible for a visa if the individual has ever: (a) been arrested anywhere for any reason; (b) been refused a U.S. visa; (c) been refused entry into the U.S.; (d) lied to get a U.S. visa; (e) violated U.S. immigration law; (f) been treated for alcoholism or a mental disorder; or (g) been involved with illegal drugs.

 

Applying for a Visa

The H-1B application procedure is a three- to four-step process, depending upon the foreign national's situation:

  1. Collecting all the information and documents needed for the petition;

  2. Filing of a Labor Condition Application with the Department of Labor;

  3. Filing of a Petition for Nonimmigrant Worker with the Citizenship and Immigration Services;

  4. Obtaining an H-1B visa stamp from a U.S. Consulate abroad, if the individual is outside the U.S. or has violated or overstayed the terms of their current status.

Applicants for visas should generally apply at the nearest U.S. Embassy or Consulate in the country where they live. It is important to apply for a visa well in advance of a planned travel departure date.

 

Completing Form DS-160, Online Nonimmigrant Visa Application, is the first step in the visa application process. After you have submitted Form DS-160, print the confirmation page and bring it to your interview. Next, pay the non-refundable visa application fee, if you are required to pay it before your interview. Then, make an appointment for an interview at the U.S. Embassy or Consulate where you pay to apply for your visa. You can learn how to schedule an appointment for an interview, pay the application processing fee, review embassy-specific instructions, and much more by visiting the website of the U.S. Embassy or Consulate where you will be applying. The wait time for an interview appointment for applicants can vary, so early application is strongly encouraged. During the visa application process, an ink-free, digital fingerprint scan will be taken. Some visa applications require further administrative processing, which takes additional time after the visa applicant's interview by a Consular Officer.

Preparation of and Filing the Labor Condition Attestation with the Department of Labor

The LCA requirement associated with the filing of an H-l B visa petition involves the employer's determination of the actual wage paid to similarly employed workers, obtaining prevailing wage information from the DOL or another "authoritative source," and the filing of the LCA with the DOL regional office.

Determining the Required Wage

The employer must pay the H-1B employee at least 100% of the prevailing wage or the actual wage, whichever is higher.

 

The prevailing wage is defined by the DOL as being the wage paid to workers in a specific job category within a specific geographic region based upon a DOL determination or another "authoritative source" (e.g., a geographic specific salary survey published within the past two years). Benefits may not be included in determining whether the prevailing wage is being offered to the H-1B employee; however, employers must offer the same benefits, including stock options, to H-1B employees as they offer to similar U.S. workers. There are special prevailing wage rules for colleges, universities, and non-profit research institutions.

The actual wage is the salary paid by the employer to other employees "with similar experience and qualifications for the specific employment in question." Once the employer defines the "specific employment in question" in terms of job duties and requirements, it must then differentiate among these individuals to determine which employees are "similarly employed" based upon the following factors:

 

  • Experience (length, type, etc.);

  • Qualifications (particular skills, etc.);

  • Education (what level is required);

  • Job responsibility and function;

  • Specialized knowledge; and

  • Other legitimate business factors (note that this may NOT include an employee's willingness to accept a lower salary, parity within the company, or qualifications irrelevant to the position).

 

If such similarly employed workers are paid different salaries, the employer must indicate which factors were used to make such salary distinctions.

DOL requires that the employer complete and retain an actual wage memorandum in a public inspection file, along with other LCA materials (described below). This memorandum must include the occupational title, education, experience level, and an explanation of other relevant factors that affect the wage rate of similarly employed workers.

LCA Attestations

In addition to attesting that the employee will be compensated appropriately as described above, the LCA affirms that:

  • The employee is eligible to participate in the same benefits programs as similarly employed U.S. workers;

  • The employment of the H-1B worker will not adversely affect the working conditions of other similarly employed workers;

  • There is no strike, lockout, or work stoppage affecting employees in the occupation  at the work site; and

  • A notice of the LCA filing has been provided to other workers at the location.

 

H-1B dependent employers and willful violators of the H-1B program who are not exempt have three additional attestations:

  • They have not and will not lay off U.S.  workers in the same occupational  classification as the H-1B employee for the 90-day period preceding and the 90-day period following the filing of the LCA.

  • They will not send the H-1B worker to work at another employer's worksite if  that second employer has laid off U.S. workers in that occupation.

  • Using industry-wide accepted standards, they have conducted good-faith efforts to recruit U.S. workers but have found none whose qualifications were equal to or better than those of the H-1B employee.

Penalties, including back pay, may be imposed in the event an employer makes a misrepresentation of fact on an LCA.

The LCA notice requirement may be accomplished by posting a copy of the LCA in two conspicuous locations at the work site for 10 consecutive business days. In the event that the occupation is unionized, a copy of the LCA must be given to the appropriate bargaining representative.

Additional Information

 

No assurances regarding the issuance of visas can be given in advance. Therefore, final travel plans or the purchase of non-refundable tickets should not be made until a visa has been issued.

Unless canceled or revoked, a visa is valid until its expiration date. If your passport expires, you may use the valid visa for travel and admission to the United States along with your new valid passport containing the same biographic data. Do not remove the visa page. Instead, carry both passports together.

 

The Department of Labor takes the position that fees associated with obtaining an H-1B visa are an employer's business expense and should not be borne by the foreign national. Therefore, care must be taken if the payment of these fees by the foreign employee may bring his or her pay below the required rate of pay (the higher of the actual or the prevailing rate).

Visa Denials

 

If the consular officer finds it necessary to deny the issuance of a visitor visa, the applicant may apply again if there is new evidence to overcome the basis for the refusal.

In Compliance?

Public Access Files

Employers of H-1B workers are obligated to comply with the attestations made on the LCA filed with the DOL in connection with the filing of an H-1B petition. Employers are required to make certain documents related to the employment of H-1B workers available for public inspection. These documents constitute the Public Access File ("PAF"). The PAF should be created at the time of submission of the LCA to the DOL for certification. As explained above, the LCA is principally a set of attestations made by the employer, including that the hiring of an H-1B worker will not have a negative impact on the working conditions or wages of the employer's similarly employed U.S. workers. The PAF must be made available within one working day of the filing of the LCA with the DOL. It must be retained for one year beyond the last day of work of any employee covered by the LCA. There should be a separate PAF for each LCA pursuant to which the employer is employing H-1B workers. The PAF must include: (a) an original signed LCA; (b) the LCA cover pages from Form ETA-9035 (an employer may keep one master set of the LCA cover pages in a separate file); (c) signed posting notices with the dates and location of posting, or other required evidence that adequate notice has been given of the hiring of the H-1B worker (this is simply a notice, and not a job-opening announcement); (d) a copy of the prevailing wage determination for the position; (e) actual wage documentation showing how the wage set for the H-1B worker relates to the wages paid to similarly employed workers at the place of employment; (f) evidence that the H-1B worker is being paid at least the prevailing wage or the actual wage, whichever is higher; and (g) information relating to the benefit plan covering the H-1B worker, to show that the worker is receiving benefits on parity with other similarly occupied workers.

A DOL finding that the employer has violated the LCA requirements, such as through "willful" failure to pay the required wage rate or "substantial" failure to post a notice of the LCA filing, could result in penalties including a $1,000.00 fine per violation, payment of back wages, and debarment from filing LCA's or permanent labor certifications, or obtaining approval of H, L, O, and P nonimmigrant or employment-based immigrant petitions for at least one year. Obviously, the care taken in adhering to these requirements will lessen the risk of imposition of any of these penalties.

 

Practical Tips: PAFs should be maintained separate and apart from I-9 records and personnel files. The LCA relates to a position for which H-1B workers are employed. It should not reflect the identity of the individual H-1B workers. Human Resources personnel may want to have a separate record that identifies the H-1B worker who is associated with a particular LCA but that should not be included in the PAF. For H-1B workers who travel frequently as part of their employment, i.e., roving employees, it may be necessary to have an LCA on file for each of the various worksites, depending upon the length of employment at the worksites.

More detailed, case-specific advice is available from Matthews Immigration Group by scheduling a consultation.

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