Nalini S. Mahadevan, JD MBA

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H1B Visas

The H-1B program applies to employers seeking to hire nonimmigrant foreign workers as workers in specialty occupations or as fashion models of distinguished merit and ability, using the H-1B nonimmigrant visa classification.

A specialty occupation requires the theoretical and practical application of a body of specialized knowledge and a bachelor's degree or the equivalent in the specific specialty (e.g., sciences, medicine and healthcare, education, biotechnology, and business specialties, etc.).

Current laws limit the number of foreign workers who may be issued a visa or otherwise be provided H-1B status to 65,000 with an additional 20,000 under the H-1B advanced degree exemption.

The H-1B1 program applies to employers seeking to hire nonimmigrant foreign workers from Chile and Singapore as workers in specialty occupations.

Effective January 1, 2004, the H-1B1 program became available, allowing employers to request foreign workers in the U.S. in a specialty occupation from Chile and Singapore. Current laws limit the number of foreign workers who may be issued an H-1B1 visa to 6,800 with 1400 from Chile and 5400 from Singapore.

The E-3 program is for Australian professionals seeking to temporarily work in the United States.

The law provides for 10,500 new visas per fiscal year for Australian nationals seeking temporary work in "specialty occupations", as defined under the H-1B provisions of the Immigration and Nationality Act (INA).

Sponsoring employers are required to file a Labor Condition Application with the Department of Labor (DOL).

To certify a position for E-3 status, the Department must find, and certify to the USCIS and the Department of State, that the employer's attestations meet the requirements of INA §212(t)(1), the section governing labor certifications for the H-1B1 program.

The Immigration and Nationality Act (INA) allows employment of foreign workers in certain specialty occupations (generally those requiring a bachelor's degree or its equivalent).

Foreign workers such as engineers, teachers, computer programmers, medical doctors, and physical therapists may be employed under the H-1B visa classification, as may fashion models of distinguished merit and ability.

The INA sets forth certain prerequisites for employers wishing to employ H-1B and H-1B1 nonimmigrant workers. To obtain H-1B or H-1B1 status approval, the employer must first file a Labor Condition Application (LCA), Form ETA 9035 or Form ETA 9035E, with the Department of Labor. The employer must state that it will:

  • Pay the nonimmigrant workers at least the local prevailing wage or the employer's actual wage, whichever is higher; pay for non-productive time in certain circumstances; and offer benefits on the same basis as for U.S. workers;
  • Provide working conditions for H-1B or H-1B1 workers that will not adversely affect the working conditions of workers similarly employed;
  • Not employ an H-1B or H-1B1 worker at a location where a strike or lockout in the occupational classification is occurring, and notify the Employment and Training Administration (ETA) of any future strike or lockout; and
  • On or within 30 days before the date the LCA is filed with ETA, provide notice of the employer's intent to hire H-1B or H-1B1 workers. The employer must provide this notice to the bargaining representative of workers in the occupation in which the H-1B or H-1B1 worker will be employed. If there is no bargaining representative, the employer must post such notices in conspicuous locations at the intended place(s) of employment, or provide them electronically.

H-1B visas are capped at 65,000 during a fiscal year, subject to certain exceptions. H-1B1 visas are limited to 1,400 nationals of Chile and 5,400 nationals of Singapore.

To hire a foreign worker on an H-1B, H-1B1, or E-3 visa, the job must be a professional position that requires, at a minimum, a bachelor's degree in the field of specialization. The occupation for which the H-1B, H-1B1, or E-3 classification is sought must also normally require a bachelor's degree as a minimum for entry into the occupation. Fashion models of distinguished merit or ability may also apply for the H-1B program.

Each employer seeking an H-1B, H-1B1, or E-3 nonimmigrant has several responsibilities:

  • The employer shall submit a completed Labor Condition Application (LCA) on Form ETA 9035E or Form ETA 9035 (if special permission is granted) in the manner prescribed by the regulations. By completing and signing the LCA, the employer agrees to several attestations regarding an employer's responsibilities, including the wages and benefits and working conditions provided to US workers and the nonimmigrant workers.
  • The employer shall make the LCA and necessary supporting documentation available for public examination at the employer's principal place of business in the U.S. and/or the place of employment within one working day after the date on which the LCA is filed with ETA.
  • The employer may submit a copy of the approved LCA to U.S. Citizenship and Immigration Services (USCIS) with a completed petition (USCIS Form I-129) requesting H-1B or H-1B1 classification. For the E-3 visa, employers may or may not need to submit a petition to USCIS. Instead, foreign workers: (1) may apply for approval directly with a U.S. consulate; (2) pay a visa fee; and (3) are issued an I-94 entry/exit document at port of entry, to function as their work authorization.
  • The employer shall not allow the nonimmigrant worker to begin work until USCIS grants the worker authorization to work in the U.S. for that employer or, in the case of a nonimmigrant who is already in H-1B status and is changing employment, to another employer until the new employer files a petition supported by a certified LCA.
  • The employer shall maintain documentation to meet its burden of proof with respect to the validity of the statements made in its LCA and the accuracy of information provided, in the event that such statement or information is challenged. The employer shall also maintain such documentation at its principal place of business in the U.S. and shall make such documentation available to DOL for inspection and copying upon request.

Employers or their representatives file for a Labor Condition Application (LCA), electronically. Beginning April 15, 2009, employers or their authorized representatives will be able to register with the iCERT System and establish a single account to file the new ETA Form 9035E – Labor Condition Application (LCA) covering the H-1B, H-1B1, and E-3 visa programs, at the Department of Labor website.

There is a dedicated Help Desk Unit at the Chicago National Processing Center to serve as a resource to those employers and or their authorized representatives filing LCAs with the Department.

Effective upon the enactment of HR 1, the American Recovery and Reinvestment Act of 2009, pursuant to section 1611(b), Div. A, it shall be unlawful for any recipient of funding under title I of the Emergency Economic Stabilization Act of 2008 (Public Law 110-343) or section 13 of the Federal Reserve Act (12 U.S.C. 342 et seq.) to hire any nonimmigrant described in section 101(a)(15)(h)(i)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(h)(i)(b)) for new employment unless the recipient is in compliance with the requirements for an H-1B dependent employer (as defined in section 212(n)(3) (8 U.S.C. 1182(n)(3))), except that the second sentence of section 212(n)(1)(E)(ii) of such Act shall not apply.

Employers who are recipients of such funding may not file Labor Condition Applications (LCAs) for new employment unless they complete the actions and make the attestations required of dependent employers.

The H-1B and H-1B1 certification is valid for the period of employment indicated on the Labor Condition Application (LCA), for up to three years.

E-3 certification is valid for a period of employment of up to two years.

A foreign worker can be in H-1B status for a maximum continuous period of six years unless USCIS grants an extension. After the H-1B expires, the foreign worker must remain outside the U.S. for one year before another H-1B petition can be approved.

Certain foreign workers with labor certification applications or immigrant visa petitions in process for extended periods may stay in H-1B status beyond the normal six-year limitation, in one-year increments.

Extensions and renewals are allowed under the H-1B1 program; however adjustment of status to another nonimmigrant category or to legal permanent residency is not permitted. Therefore one year increment extensions, due to labor certification applications or immigrant visa petitions in process for extended periods, do not apply to H-1B1 visa holders.

The Department of State issues E-3 visas for periods of employment up to two years. Although admission to the United States and extensions of stay are both limited to 2-year increments, E-3 visas can be renewed indefinitely.

In addition to the rules above, there are special rules that apply to H-1B dependent employers and willful violators of the H-1B rules.

These rules sunsetted for H-1B employment under LCAs filed after September 30, 2003 but were restored effective March 8, 2005 by the H-1B Visa Reform Act of 2004.

An H-1B dependent employer is, roughly, one whose H-1B workers comprise 15% or more of the employer's total workforce. (Different thresholds apply to smaller employers.)

H-1B dependent employers who wish to hire only H-1B workers who are paid at least $60,000 per year or have a master's degree or higher in a specialty related to the employment can be exempted from these additional rules.

H-1B dependent employers and willful violator employers must attest to the following three elements addressing non-displacement and recruitment of U.S. workers:

  • The employer will not displace any similarly employed U.S. worker within 90 days before or after applying for H-1B status, or an extension of status for any H-1B worker;
  • The employer will not place any H-1B worker employed pursuant to the LCA at the worksite of another employer unless the employer first makes a bona fide inquiry as to whether the other employer has displaced or intends to displace a similarly employed U.S. worker within 90 days before or after the placement of the H-1B worker; and
  • The employer, before applying for H-1B status for any foreign worker pursuant to an H-1B LCA, took good faith steps to recruit U.S. workers for the job for which the foreign worker is sought, at wages at least equal to those offered to the H-1B worker. Also, the employer will offer the job to any U.S. worker who applies and is equally or better qualified than the H-1B worker.
  • This attestation does not apply if the H-1B worker is a "priority worker" within the meaning of Section 203(b)(1)(A), (B), or (C) of the INA.

After the Department of Labor certifies the LCA, the employer will apply to the U.S. Citizenship and Immigration Services (USCIS) for approval to employ an foreign worker under H-1B status so that foreign workers may be hired.

For H-1B1 visas, after the Department of Labor certifies the LCA, the employer must follow the procedures of USCIS and the Department of State, which differ in some respects from procedures for H-1B visas.

H-1B and H-1B1 workers are granted a number of important rights. The employer must give the worker a copy of the LCA. The employer must pay the worker at least the same wage rate as paid to other employees with similar experience and qualifications or the local prevailing wage for the occupation in the area of employment, whichever is higher. The employer must pay for non-productive time caused by the employer or by the worker's lack of a license or permit. The employer must offer the worker fringe benefits on the same basis as its other employees.

Also, the employer may not require the worker to pay a penalty for leaving employment prior to any agreed date. However, this restriction does not preclude the employer from seeking "liquidated damages" pursuant to relevant state law. Liquidated damages are generally estimates stated in a contract of the anticipated damages to the employer caused by the worker's breach of contract.

U.S. workers and job applicants may also have certain rights under the H-1B and H-1B1 programs. U.S. workers employed by an H-1B dependent or willful violator employer may not be laid off within 90 days before or after the employer files a USCIS petition to employ an H-1B worker in an essentially equivalent job. In addition, an H-1B dependent employer or willful violator must offer the job to any U.S. worker who applies and is equally or better qualified for the job than the H-1B foreign worker. The U.S. Department of Justice has the authority to investigate complaints of failure to hire qualified U.S. workers.

No employer of H-1B or H-1B1 workers may intimidate, threaten, blacklist, discharge, or in any other manner discriminate against any employee, former employee, or job applicant for disclosing violations of H-1B or H-1B1 provisions or for cooperating in an official investigation of the employer's compliance.

U.S. workers and H-1B/H-1B1 workers may also examine the public disclosure documents that the employer is required to maintain that provide information about the employer's compliance with the attestation elements.

Complaints about non-compliance with H-1B/H-1B1 labor standards may be filed with local Wage and Hour Division offices.

When violations are found, the Administrator of the Wage and Hour Division may assess civil money penalties with maximums ranging from $1,000 to $35,000 per violation, depending on the type and severity of the violation. The Administrator may also impose other remedies, including payment of back wages.

Within 15 days of the date of the determination, any interested party may request a hearing on the Wage and Hour Administrator's determination before an administrative law judge. Within 30 days of the decision by an Administrative Law Judge, an interested party may request a review of the ALJ's decision by the Department's Administrative Review Board.

Employers found to have committed certain violations may also be precluded from future access to the H-1B program and other immigrant programs for a period of at least one year.

Effective March 8, 2005, an H-1B employer will be considered in compliance notwithstanding a technical or procedural failure if such employer:

  • Makes a good faith attempt to comply;
  • Voluntarily corrects violations within 10 business days of being advised by an enforcement authority; and
  • Has not engaged in a pattern or practice of willful violations; and
  • For prevailing wage violations, can establish that the wage was calculated consistent with recognized industry standards and practices.

Various other laws, such as worker's compensation, tax (unemployment insurance, local, state, and federal), the Fair Labor Standards Act, and the Family and Medical Leave Act, may apply to the employment of these workers.