H-1B Overview of a Highly Regulated Nonimmigrant Category
The H-1B Petition is for “specialty occupations,” which the Department of Homeland Security defines as a position requiring a specific field of study with a minimum credential of a bachelor’s degree although an equivalent in work experience is sometimes acceptable. It is a professional work category of which the most common fields include architecture, engineering, computer science, teaching, medicine, accounting, research, and finance.
In this article
The H-1B Petition is filed by an employer (petitioner) seeking to temporarily employ a foreign prospective employee in a specialty occupation, which is filed with a branch of the Department of Homeland Security (DHS) called USCIS. The beneficiary of an H-1B Petition is quite often a foreign graduate of a U.S. university who is employed already with the company through optional practical training (OPT), (a work program available to F-1 foreign students upon graduation for 1-3 years). H-1B Petitions are also filed for professionals working overseas or for professionals at companies operating internationally.
A. The Processing of an H-1B Petition
The employer seeking to file an H-1B Petition must initially register the beneficiary for a lottery which is limited by a yearly quota. The registration system was created in 2019 and the lottery was run pursuant to registration for the first time in February 2020. The registration system replaced the previous system in which the lottery occurred only after a complete H-1B application had been filed with USCIS during the first week of April of each year. The current system is a two-part process in which registration is the initial step, and if chosen in the lottery, there is a second step consisting of filing of a completed H-1B Petition. The employer must complete the H-1B Petition within three months of being notified of the lottery selection. The lottery winner is eligible to start employment pursuant to the H-1B Petition approval on October 1 of each calendar year.
The quota for grant of new H-1B Petitions, which is the reason for registration and lottery, is capped by statute at 65,000 for individuals with bachelor’s degrees and an additional 20,000 for individuals with master’s degrees from U.S. universities. The system is designed to give individuals with U.S. master’s degrees an advantage in that they are considered applicants for both the 20,000 master’s cap lottery and the 65,000 general-lottery. Once the H-1B beneficiary wins the lottery, he or she is exempt from future lotteries so long as that individual starts the H-1B employment. This exemption allows for a change of jobs or a request for extension of H-1B status. There are other exemptions from the quotas for first-time H-1B applicants, such as employment with U.S. secondary educational institutions such as universities, colleges, nonprofit, and government research organizations.
The employer filing the H-1B Petition normally seeks employment for the beneficiary in the maximum-allowed three-year increment, although a shorter period can be requested. The maximum period an applicant may hold H-1B status (including extensions) is six years, and the applicant can work for multiple employers during that period. This six-year cap is subject to three significant exceptions. The H-1B period can be extended beyond six years if: 1.) the beneficiary of the H-1B has an employment-based immigrant visa petition approved in a retrogressed category; 2) a labor certification has been pending in excess of one year or is approved and still valid; or 3) employment in the United States by the beneficiary is intermittent or less than six months of each year and the beneficiary primarily lives abroad. As are result, there are many individuals working in the United States in H-1B status well-beyond six years due to these exceptions.
The first step in the H-1B process is the determination of prevailing wage, which is a regulatory requirement that an employer agrees to pay prevailing wage and prepare a Public Access File (PAF) to document wage compliance. Prevailing wage information is published by the Department of Labor (DOL) and is divided into four categories based upon the requirements of the position in terms of education and experience. Prevailing wage is also determined by geographical area that is commonly called a metropolitan statistical area (MSA). The prevailing wage will vary greatly depending upon the anticipated place of employment, which is to be expected since New York City and Topeka are significantly different job markets. The employer must also agree to pay the H-1B employee the actual wage offered to other employees at the place of employment, which is the salary offered to others performing the same or similar job with similar credentials. The PAF includes, among other documents: an actual and prevailing wage memorandum; evidence that the employer has posted a notice for 10 days in the place of employment or headquarters that it is hiring a foreign worker at or above prevailing wage; a prevailing wage determination for that geographical area; and an explanation of the criteria used by the employer to determine the wage level. The DOL also requires the employer to certify that it will pay prevailing wage in a filing called a Labor Condition Application (LCA), a document which is attached to the H-1B Petition and provided to the H-1B beneficiary. The LCA takes seven days to be certified. Finally, the law does describe significant penalties for companies that violate DOL regulations regarding payment of prevailing wage and preparation of the PAF, assessments which occur during a DOL audit that is most often triggered by an H-1B employee complaint. So, it is important the employer prepare these documents in accordance with the regulations governing their creation to avoid issues of compliance in case of audit.
Once the LCA is certified, the employer can file the H-1B Petition with U.S. Citizenship and Immigration Services (USCIS), which is the adjudication branch of DHS. USCIS takes an average of two to four months to process H-1B Petitions, but historically that period increases during the main H-1B application period of April to September. DHS has a feature for H-1B processing called “premium processing” that reduces the processing time to 15 calendar days guaranteed (unless additional information is requested). It is not necessary to use premium processing, however, if the future employee (foreign worker) is already in H-1B status because of a law passed by Congress in 2002, which authorizes the employment of an individual already in H-1B status for a new petitioning employer upon filing of the H-1B Petition.
The H-1B Petition is restricted to “specialty occupations” which is a statutory and regulatory term that has sometimes been narrowly interpreted by USCIS.
The H-1B beneficiary is restricted to employment within the geographic area (MSA) commensurate with the prevailing wage determination by DOL. The geographical restrictions on H-1B employment are tempered by short-term employment rules for H-1B beneficiaries reassigned or placed at other employment sites. For example, an H-1B worker who is stationed and regularly works at one location may temporarily be placed at another location for a particular individual or employer-required developmental activity, such as a management conference, a staff seminar, or a formal training course. Additionally, if the H-1B employee’s presence at the location to which he/she travels is short-term, which can be recurring but not excessive (i.e. not exceeding five consecutive workdays for any one visit by a worker who frequently travels or 10 days if the worker spends most time in one location, then the H-1B employer may work at the new location without amending the H-1B Petition. Finally, a “short-term placement” rule allows placement of an H-1B employee, who frequently travels, for less than 30 workdays at a worksite in any calendar year without triggering the need for filing of a new LCA and H-1B Petition. Further, if the H-1B worker has a permanent worksite and spends a substantial period of the year at that worksite, placement can be up to 60 days at another worksite in one calendar year.
If the H-1B beneficiary is terminated prior to the period requested by the employer, the employer must notify DHS of the termination and withdraw the H-1B Petition. If the beneficiary is terminated (rather than left the petitioner voluntarily), the employer is required by law to offer a reasonable cost of transportation to the H-1B holder to return to their home country. The failure to properly notify USCIS of an employee’s termination can result in a payment of back wages or penalties.
B. H-1B Issues
A specialty occupation is statutorily defined as a position that requires a theoretical and practical application of a body of highly specialized knowledge, which is marked by attainment of a bachelor’s or higher degree in the specific specialty (or its experience equivalent). The regulations identify the following illustrative list of fields as appropriate to H-1B: architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts. Additionally, according to regulations, the position must meet at least one of four thresholds: 1) a bachelor’s or higher degree or its equivalent is normally the minimum requirement for entry into the particular position; 2) the degree requirement is common to the industry in parallel positions among similar organizations; 3) the employer normally requires a degree or its equivalent for the position; or 4) the nature of the duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
The academic field must logically relate to the position offered, otherwise USCIS may challenge whether the position is professional. USCIS makes its challenge through issuance of a Request for Evidence (RFE), the frequency of which often correlates to the breadth of the category of educational field that serve as entry into the occupation. For example, petitions for market research analysts and data analysts are more often challenged because the educational field that correlates to the occupation varies from industry to industry. USCIS often cites to the U.S. government publication Occupational Outlook Handbook (OOH), to establish that these occupations are entered into by individuals with varying degrees, which USCIS views as evidence that the position is not a specialty occupation. The best response is to narrow the category to one that services a niche field. For example, a data analyst working in a health-related field may be able to establish a correlation to a high-education degree in health administration by matching coursework to a carefully crafted job description that highlights the theoretical application of educational principles to the position offered.
A carefully crafted job description can avoid pitfalls that are commonly cited to by USCIS. This is especially true in job categories that USCIS has a propensity to challenge such as analysts (market research, data, financial), administrators (computer systems, network), programmers, technologists, and many positions within the social sciences. One effective tactic is to break down the job description into percentage of daily activities to illustrate the preponderance of job duties correlate to a specific educational field. Additionally, the duties described in the job description should contain actual processes written in detail that include the utilization of tools integrated into the steps of the process rather than a generic overview. USCIS wants to know the actual position being filled rather than a general description that is more appropriately employed to describe an industry standard. The more detailed job descriptions also distinguish the job offered from categories of employment that are not considered professional but share some superficial resemblance. One example of this dichotomy is the position Architectural Associate (or Architectural Intern) and Architectural Drafter which, in the former case USCIS considers professional, and in the latter case USCIS considers a technical position that does not have a bachelor’s degree threshold.
USCIS is more likely to challenge occupations in emerging fields since its prevailing wage and reference tools are often out-of-date and do not reflect current employment trends. The data analyst and data scientist positions are not found in the OFLC prevailing wage system employed by DOL although it is an important emerging field within the United States. Its relegation to the “Computer Occupations, All Other” category for prevailing wage purposes has been cited by USCIS as evidence that the data analyst category is a generic one without any specific educational requirements. The failure of USCIS to keep up with market trends means it sometimes needs to be educated within the H-1B Petition of emerging new job categories and the specific educational fields that are related. Therefore, it is sometimes necessary to solicit letters from associations and organizations serving that field to describe degree requirements for an emerging occupation or to solicit an evaluation from a professor who can offer his expertise in a detailed letter that explains how the occupational trend in an emerging field requires a specific bachelor’s degree that has only recently become the industry standard.
Although H-1B Petitions are defined by statutes and regulations that have been around for years and are little changed over the past decade, USCIS fluctuates in how strictly it will apply those laws to its adjudication of H-1B Petitions. There are periods marked by lax enforcement and ones where arbitrariness becomes a common factor in the decisions rendered. Despite this ebb and flow, the focus is almost always on the job description and whether it adequately describes a position that meets the threshold for specialty occupations. Therefore, the best mitigation to this unpredictability is in the initial preparation of the H-1B Petition. If it is detailed and assimilates processes that are linked to an educational background in a specific educational field, then it will greatly increase the likelihood of it being approved without USCIS challenging any aspect of the representations made.
The opinions provided in this overview are not intended as legal advice and should not be considered to diminish the importance of seeking individualized assessment of your case by a qualified attorney who regularly handles immigration matters.