ILW.COM - the immigration portal Immigration Daily

< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

H-1B Series: General Requirements of Program
by George N. Lester IV

George N. Lester IV

The H-1B program requires that a specific job offer in the United States be made by a U.S. employer, and that the sponsoring employer file an petition with the INS for authorization to employ the foreign worker. This article contains a summary of the basic substantive requirements and procedural steps involved in preparing the H-1B "specialty occupation" petition and actually hiring the H-1B worker. This summary may serve as a general checklist prior to offering a job to a foreign professional for whom H-1B work authorization is necessary. The requirements will be discussed in more detail in subsequent articles.

[1]-Status of Petitioner

The Petitioner must be a "United States Employer" or its agent. The U.S. employer is a "person, firm, corporation, contractor, or other association, or organization" in the U.S. which (1) engages a person to work in the U.S., as specified in the petition process, (2) has or will have an employer-employee relationship with the person or persons for whom it files H-1B petitions, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the employee's work, and (3) has a U.S. Internal Revenue Service tax identification number. A foreign entity may file a petition to employ an H-1B worker in the U.S., but only if it first establishes at least a U.S. "branch office" and obtains the requisite tax identification number.

[2]-Specialty Occupation Defined

The petitioner must make a bona fide job offer in a "specialty occupation" position. A specialty occupation is an occupation that "requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor," and which ordinarily "requires the attainment of a bachelor's degree or higher in the specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States." The job offer must be a real, nonspeculative offer of employment based on the employer's actual need for the foreign national's services in the specialty occupation.

[3]-Foreign Worker's Qualifications

The foreign national who is the subject of the H-1B petition must be "qualified to perform services in the specialty occupation because he or she has attained a baccalaureate or higher degree or its equivalent in the specialty occupation." To meet this criterion, the foreign national may

  1. hold a baccalaureate or higher degree "required by the specialty occupation" from an accredited U.S. college or university,
  2. hold a foreign degree determined to be the academic equivalent of such a U.S. degree,
  3. hold an unrestricted state license, registration, or certification to practice the specialty occupation in the state of intended employment, or
  4. "have education, specialized training, and/or progressively responsible experience that is equivalent to completion of a U.S. baccalaureate or higher degree in the specialty occupation," "recognition of expertise in the specialty through progressively responsible positions directly related to the specialty."
The latter provision permits H-1B status to be approved for a foreign national who has not earned a baccalaureate degree when his or her experience combined with any education is equivalent to the statutory qualification for the occupation.

[4]-Labor Condition Application as Prerequisite

No H-1B petition can be granted unless the U.S. Department of Labor ("DOL") first certifies that the employer has properly filed a "Labor Condition Application" ("LCA") with the DOL. The LCA contains a set of attestations relating to conditions of employment in the offered position. This process imposes a set of further specific substantive and record-keeping requirements on the petitioning employer which have as their main purpose to guarantee that employment of H-1B workers will not adversely affect U.S. workers in the same occupation. These requirements are as follows:

  • The employer must pay at least the greater of (1) the "actual wage level" paid by the employer to other individuals with similar experience and qualifications for the employment or (2) the "prevailing wage level" for the occupational classification in the area of employment, and must offer benefits or eligibility for benefits (such as insurance, retirement and savings plans, bonuses and noncash compensation such as stock options) on the same basis and in accordance with the same criteria as the employer offers to U.S. workers. It is a violation of this requirement for the employer to place an H-1B worker in "non-productive status" (commonly known as "benching") without paying the specified wage.
  • The employer must certify that "employment of H-1B nonimmigrants will not adversely affect the working conditions of workers similarly employed in the area of intended employment." This is also referred to as the "prevailing working conditions" statement, and means that working conditions for similarly employed U.S. workers should remain similar to conditions that preceded employment of the H-1B foreign national. "Working conditions" encompass such matters as benefits, vacation periods, hours, and shifts.
  • The employer must certify that there is "not a strike or lockout in the course of a labor dispute in the occupational classification at the place of employment."
  • The employer must provide notice to employees of the filing of the LCA through (1) notification to a bargaining representative in the occupational classification or, (2) if there is no bargaining representative, use of other methods such as physical posting in conspicuous locations at the place of employment or "electronic notification" to employees in the occupational classification.
  • The employer must keep certain records pertaining to the LCA available for examination upon request by the public or by the DOL. These records include:
    1. a copy of the LCA,
    2. documentation of the wage rate paid to the H-1B worker,
    3. documentation of the system used to set the "actual wage" the employer has paid or will pay to workers in the occupation such as a memorandum summarizing the system or a copy of the employer's pay system or scale,
    4. documentation used to establish the "prevailing wage" rate for the occupation, and
    5. documentation that the requirement of notice to employees, by means of a bargaining representative or posting, has been met.
    These records must be retained throughout the period of the LCA and for one year thereafter.
  • If the employer is an "H-1B Dependent Employer" or a "Willful Violator," then it must make additional attestations, subject to certain exemptions. An "H-1B Dependent Employer" is one with a particular proportion of H-lB nonimmigrants in the total "full time equivalent" workforce, as follows:
    1. an employer having twenty-five or fewer full-time equivalent employees with more than seven H-1B nonimmigrant employees,
    2. an employer having at least twenty-six but not more than fifty full-time equivalent employees with more than twelve H1B nonimmigrant employees, or
    3. an employer having at least fifty-one full-time equivalent employees, of whom at least 15% of the number of such fulltime equivalent employees are H-1B employees.
A "Willful Violator" is an employer against whom the Department of Labor or Department of Justice had entered a finding of violation in proceedings related to a prior Labor Condition Application, on or after October 21, 1998, and found that the employer committed a "willful failure" or a misrepresentation of a material fact, during the five-year period preceding the filing of the new LCA. The special additional attestations these employer must make are:
  1. The employer will not displace (i.e., lay off) any "similarly employed" U.S. worker within ninety days before and ninety days after the date of filing an H-1B petition supported by the LCA. A "similarly employed" worker is one who is employed in an "essentially equivalent" job in the same geographic area of employment.
  2. The employer will not place an H-1B nonimmigrant employed under the LCA with any other employer or at any other employer's worksite unless it inquires of the other employer whether that employer has displaced or intends to displace a similarly employed U.S. worker within ninety days before or after the placement, and the other employer replies in the negative, and
  3. Prior to filing any petition for an H-1B nonimmigrant supported by the LCA, the employer took or will take good faith steps, using industry-wide standards, to recruit U.S. workers for the job, and the employer has affirmatively offered the job to any U.S. worker who has applied and who is equally or better qualified than the H-1B worker.
These additional obligations do not apply, however, to an LCA filed for the employment of "exempt" H-1B nonimmigrants, who are H-1B workers receiving wages at an annual rate of at least $60,000, or who have attained a master's or higher degree (or its equivalent) in a specialty related to the intended employment.

[5]--Filing the H-1B Petition

The petition is filed with one of four Immigration Naturalization Service ("INS") regional service centers in Vermont, Nebraska, Texas, or California. It must usually be filed with the service center with jurisdiction over the intended location of employment. The petition package must include INS Form 1-129 and its H Supplement, the INS Form 1-129W the certified LCA, various categories of supporting documentation to establish the substantive requirements outlined above, and certain documents relating to the foreign national's status if he or she is already located in the U.S.

[6]-Receipt of H-1B Status

The petition approval is not a visa, nor does it automatically grant authorization for a foreign national to begin work. If the foreign national is outside the U.S., then he or she must be inspected and admitted to the U.S. in H-1B status, which for all but Canadians requires an H-1B visa to be issued from a U.S. consulate abroad. If the foreign national is already in the U.S. in a different nonimmigrant status or in H-1B status with another employer, then he or she must be specifically granted a change to H-1B status or an extension or amendment of any existing H-1B status in order to hold the employment. Under the concept of "H-1B portability," though, if the foreign national is in the U.S. and holds or has previously held H-1B status and meets certain other conditions, then he or she may begin working for the new employer upon the filing of a new H petition, pending its outcome.

About The Author

George N. Lester IV is of the Immigration Practice Group (the "Group") of the law firm of Foley, Hoag & Eliot LLP. Foley, Hoag & Eliot LLP is a full-service law firm of 200 lawyers in Boston and Washington, D.C. It was the first large law firm in Boston to develop an expertise in business immigration law, and for over thirty years its Group has represented employers in a full range of procedures to obtain temporary or permanent authorization to employ foreign professionals. Mr. Lester has practiced immigration law for ten years, and regularly speaks to business, academic, and professional groups on immigration topics. As part of his regular AILA activities, Mr. Lester meets with officials of the INS Vermont Service Center to discuss H-1B and other liaison topics. He also serves as Treasurer and a Board Member of the Political Asylum/Immigration Representation Project (PAIR) in Boston, and received that organization's Pro Bono Attorney Award for Dedication and Commitment to Human Rights in May 1996. Mr. Lester is a 1989 graduate of Northeastern University School of Law.

This article is based on a chapter titled "Specialty Occupation Professionals," by George N. Lester IV in Business Immigration Law: Strategies for Employing Foreign Nationals by Rodney A. Malpert and Amanda Petersen and appears here with the permission of the publisher. Published by Law Journal Press. Copyrighted by NLP IP Company. All rights reserved. Copies of the complete work may be ordered from Law Journal Press, Book Fulfillment Department, 105 Madison Avenue, New York, New York 10016 or at or by calling 800-537-2128, ext. 9300.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.