While H1B is popular to companies that wish to employ a foreign individual, many employers are unsure if their employees will qualify or be impacted by the H1B cap. Whether you are a small company seeking guidance on your first H1B petition or a multinational corporation, we would be happy to review the requirements and applicant's qualifications and assist you with this process.

Overview

Established by the Immigration Act of 1990 (IMMACT), the H-1B nonimmigrant visa category allows U.S. employers to augment the existing labor force with highly skilled temporary workers. H-1B workers are admitted to the United States for an initial period of three years, which may be extended for an additional three years. The H1B visa program is utilized by businesses and organizations to employ foreign workers in specialty occupations that require theoretical or technical expertise in a specialized field.

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" [INA§214(i)(1), 8 USC § 1184(i)(1)]. Typical H-1B occupations include architects, engineers, computer programmers, accountants, doctors and college professors. The current annual cap on the H1B category is 65,000.

The H1B Visa Reform Act of 2004, which took effect on May 5, 2005, changed the H1B filing procedures for FY 2005 and for future fiscal years. The Act also makes available 20,000 new H1B visas for foreign workers with a master’s or higher level degree from a U.S. academic institution.

Spouse and unmarried children under 21 years of age of H1B workers are entitled to H-4 status with the same restrictions as the principal.

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H1B Flowchart

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Main Qualifying Criteria

The H1B program allows an employer to temporarily employ a foreign worker in the U.S. on a nonimmigrant basis in a specialty occupation. H1B is job-specific. This means that the foreign professional must have a job offer from an U.S. employer, and the position offered must require the worker's qualifications and/or skills.

Specialty Occupation

The position offered must qualify as a specialty occupation. 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., engineering, mathematics, physical sciences, computer sciences, medicine and health care, education, biotechnology, and business specialties, etc.).

Educational Qualifications

To qualify for the H1B visa category, the prospective H1B employee must hold a U.S. bachelor's or higher degree, or the equivalent. USCIS holds "equivalent" to mean "the achievement of a level of knowledge, competence, and practice in the specialty occupation that has been determined to be equal to that of an individual who has a baccalaureate or higher degree in the specialty occupation. Three years of employment in progressively more responsible positions in the specialty occupation are considered by USCIS as equivalent to one year of academic training.

An applicant without a U.S. bachelor's degree must demonstrate that he has the equivalent to this degree to qualify for the H-1B category.

In addition to the academic qualifications, the individual must be fully qualified to lawfully perform the duties of the position offered. In occupations that require licensure or professional credentials (e.g., doctor, dentist, attorney, CPA, architect, registered nurse), the individual must already hold such qualification before the H1B visa petition can be filed.

Employer’s responsibilities

Each employer seeking an H1B nonimmigrant in a specialty occupation has several responsibilities:

The employer shall submit a completed Labor Condition Application (LCA) on Form ETA 9035E 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, working conditions, and benefits to be provided to the H1B nonimmigrant.

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. or the place of employment within one working day after the date on which the LCA is filed with ETA.

The employer may then submit a copy of the approved LCA to USCIS with a completed petition (USCIS Form I-129) requesting H1B classification.

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 H1B status and is changing employment, to another H1B 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.

Quota Issues

The Immigration and Naturalization Act ("INA") allows for the issuance of only a specific number of each type of visa, both immigrant and nonimmigrant, every fiscal (October 1st to September 30th) year. Once this visa "cap" is reached, no more visas can be issued until the beginning of the next fiscal year.

In 1990 Congress imposed a numerical cap on the number of H1B visas issued each fiscal year. The first cap set H1B numbers at 65,000 annually. In the thriving economy of the late 1990s, the cap was prematurely reached in FY 1997, FY 1998, FY 1999, and FY 2000. Once a fiscal year's cap was reached all additional H-1B petitions were returned until a new fiscal year began, thus causing significant strain on U.S. businesses. To alleviate this problem, Congress raised the fiscal year cap to 115,000 for FY 1999 and FY 2000, and then to 195,000 for FY 2001-2003. The temporary increase ended. Effective October 1, 2003, only 65,000 new H1B petitions can be granted each year.

Quota exemptions: Not all H1B visa petitions are subject to the cap, however. Examples of "exempt" categories include: H1Bs hired by institutions of higher learning, affiliated research organizations, nonprofit research organizations and governmental research organizations.

Also, if the individual was in the U.S. in H1B status, s/he is not subject to the quota, since AC21 section 103 amends INA section 214(g)(7) to make clear that anyone who already has been counted in the past six years would not be counted again unless eligible for another full six years.

The Consolidated Appropriations Act of 2005 was enacted on December 8, 2004. The Act provides new exemptions from the annual H1B cap: the first 20,000 H1B beneficiaries who have earned a master's degree or higher from a U.S. institution of higher education are not subject to the annual H1B cap.

Who is affected by the cap: Given that the H1B cap returned to 65,000 on October 1, 2003, managers, recruiters, and human resource departments planning to hire a foreign national should be concerned about the H1B quota. Additionally, foreign nationals in nonimmigrant status such as B, F, J or H-4 who request a change of status to H1B are also affected by the H1B quota.

Who is not affected by the cap: Foreign nationals currently in H1B status who need to file an extension of status or change of employer are not affected by the drop in H1B numbers. Further, foreign nationals seeking employment through institutions of higher education, nonprofit research organizations, and government research organizations will continue to be exempt from the H-1B cap.

What to do: Plan ahead. Accelerate your H1B filings: current processing times for H1B classification take several days (through Premium Processing) to several months. File as early as possible in the fiscal year.

Additional H1B related Resources

• USCIS Supplemental Guidance on H1B processing under AC21
• USCIS Guidance on Exemption from the H1B Cap
• USCIS Memo: H1B Cap Exemption for Alien Holding a Master’s or Higher Degree from a U.S. Institution
• USCIS Guidance on H1B Portability, and Extensions past the 6-year Limit
• Additional Guidance on H1B Portability
• USCIS Memo: Recapture of time for H and L Workers
• USCIS Memo: H1B Licensing Issues
• USCIS Guidance on Corporate Restructuring