H-1 B Professionals

Selected Nonimmigrant Categories -H-1B
H-1 vs. TN status

Prior to the implementation of the North American Free Trade Agreement ("NAFTA"), professionals in Canada or Mexico applied for working visas to the United States under the H-1B category. Since that time, Canadian professionals have opted to apply under the Trade NAFTA ("TN") category because of its simplified processing at the port of entry. However, the same application process has not been implemented for Mexican applicants whose application process is more complicated and entails processing the petition with the Nebraska Service Center in Lincoln, Nebraska. The H-1B category is still essential where a professional cannot qualify for TN status.

Basic Requirements

Under the Immigration and Nationality Act ("INA"), the H-1B category is available to a foreign worker seeking to enter the United States for the purpose of working either in a "specialty occupation".

The term "specialty occupation" is defined in the Immigration and Nationality Act ("INA") as an occupation that requires a theoretical application of a highly specialized body of knowledge and the attainment of a bachelor's or higher degree (or its equivalent) in the specific specialty as a minimum for entry into the occupation in the United States. The list of potential occupations which fall within the term "specialty occupations" is not closed and limited to the professions as stated in the statute. Provided that an occupation can be shown to fall within this definition, it can qualify for H-1B status.

Certain occupations have no trouble meeting this definition, since specialty occupations are deemed to include "professions". INA §101 (a)(32) states that the term "profession" shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries. These occupations would easily qualify for H-1B status in that each one is specifically mentioned in the statute.

To qualify as a specialty occupation, one of the following requisites must be documented:

a bachelor degree or higher degree (or its equivalent) is normally the minimum entry requirement for the position;
the requirement of a degree for the position is common in the industry or the position is so unique or complex that it can only be performed by someone with a degree;
the employer normally requires a degree or its equivalent for the position; or
the nature of the job duties are so specialized and complex that the knowledge required to perform the duties is usually associated with a bachelor or higher degree.

If the position is a specialty occupation, the foreign worker must show then that he or she is qualified to fill the position. The INA specifies that to meet the requirements of the specialty occupation, the alien must possess the following:

full state licensure, if required for practice in the state; and
either of the following:
completion of a bachelor or higher degree (or its equivalent) in the specific specialty; or
experience in the specialty equivalent to the completion of such degree and recognition of expertise in the specialty through progressively responsible positions relating to the specialty.

The regulations contained in Title 8 of the Code of Federal Regulations (the CFR) specify that for the purpose of determining equivalency to a bachelor degree in the specialty, three (3) years of specialized training and/or work experience must be demonstrated for each year of college level education that the foreign worker lacks.

Since the 1990 amendments to the INA , there have been several changes to the H-1 B category. There is now a limit of 65,000 on the number of persons who may receive H-1B status in each fiscal year. Also, extraordinary ability entertainers, athletes and artists (now under the O and P visa categories) were removed from the H-1 B category. Professional nurses were also excluded from the H-1B category (and placed in the H-2A category) but have since become eligible for H-1B again as of September 1, 1995. However, the most significant change is that an H-1B approval from the INS can only occur upon prior approval of a labor condition application ("LCA") by the Department of Labor (DOL).

The filing of an H-1B petition for an alien in a specialty occupation requires an approved LCA, valid for the dates of intended employment. An LCA does not require proof that U.S. workers are unavailable. However, it does require that the employer make the following promises or attestations:

that the compensation to be paid to the H-lB worker will be the greater of:
the actual wage paid by that employer to all other individuals with similar experience and qualifications for the specific employment in question at the place of employment; and
the prevailing wage for the occupation in the area of intended employment;
that the employment of the H-1B worker will not adversely affect the working conditions of other workers similarly employed in the area of intended employment;
that there is no strike or lockout in the occupational classification of the H-1B worker at the place of employment and if such a strike or lockout occurs:
the employer will notify the Department of Labor within three (3) days of the occurrence; and
the employer will not use the LCA in support of an H-1 B petition until the strike or lockout has ceased;
that a copy of the LCA has been or will be provided to each H-lB non-immigrant employed pursuant to the LCA and either:
notice of the filing of the LCA has been provided to the bargaining representative of workers in the occupation in which the H-1 B worker will be employed; or
where there is no such representative, that notice has been posted and was, or will remain, posted for 10 days in at least two (2) conspicuous locations where the H-1 B worker will be employed; and
that certain supporting documents will be made available for public examination within one (1) working day of filing the LCA.

The LCA is valid for a maximum period of three (3) years. Failure to comply with the LCA requirements can result in severe employer sanctions imposed by the federal government.

Terms of Admission

An H-1B visa is valid initially for up to three (3) years. Extensions may be requested up to a maximum total stay of six (6) years in either H or L status. The H-1B worker must then reside outside the United States for at least one (1) year before becoming eligible for H status again.

Pursuant to Federal Regulation 8 CFR § 214.2(h)(6)(vi)(E), the employer of an H-1B alien will be liable for the reasonable costs of return transportation of the alien abroad, if the alien is dismissed from employment for any reason by the employer before the end of the period of authorized admission. If the alien voluntarily terminates his or her employment prior to the expiration of the validity of the petition, the alien has not been dismissed. This provision applies to any employer whose offer of employment became the basis for the alien obtaining or continuing H status. However, there is no statutory or administrative mechanism for enforcing this obligation.

The doctrine of dual intent is statutorily recognized for the H-1 category. Therefore, an applicant may receive the H1B status but still pursue his/her status permanent residency without being required to maintain a foreign residence

Dependents of H-1 B Foreign Employees

The dependent spouse or unmarried child under age 21, who are accompanying or following to join the H-1B alien, can be admitted as H-4 dependents. H-4 dependents are not permitted to engage in employment. However, the dependents may study and also engage in activities ordinarily permitted for B-2 visitors. The doctrine of dual intent is also recognized for H-4 dependents of H-1B aliens.

H-1 B Professionals
© 1998 Adan G. Vega. All Rights Reserved.

Law Office of Adan G. Vega and Associates, P.C. Houston, Texas, (713) 527-9606