H-1B is a non-immigrant status. H-1B status is widely used by U.S. colleges and universities to employ foreign nationals in "specialty occupations," defined under immigration law as "one which requires the theoretical and practical application of a body of highly specialized knowledge requiring the attainment of a bachelor's or higher degree as a minimum for entry into the occupation."
Although there is a wide range of occupations whose entry level requirements fit the law’s description for H-1B status, USCIS has firmly established that the following categories of workers fall within the H-1B category: health care professionals, university professors and other teachers, engineers, systems analysts and other computer professionals, scientists, librarians, psychologists, journalists, editors, technical publications writers, management consultants, market research analysts, financial analysts and other persons in advanced business specialties, accountants, lawyers and foreign law advisors, architects, and other service professionals.
Restrictions
Return Transportation: In the event an H-1B worker is dismissed from employment prior to the end of the authorized stay requested by the employer, regulations require that the employer pay reasonable costs to return the employee to his or her last place of residence outside the U.S.
Labor Condition Application Attestations: H-1B regulations protect U.S. workers and prevent the exploitation of foreign workers by requiring that an employer file a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL). The employer must attest to the following on the LCA:
- it will pay the non-immigrant worker at least the local prevailing wage or the employer’s actual wage, whichever is higher, and will pay the employee for any non-productive time;
- it will offer the non-immigrant worker benefits on the same basis as U.S. workers;
- it will provide working conditions for non-immigrants which will not adversely affect the working conditions of others similarly employed;
- there is no strike, work stoppage, or lock out in the occupational classification at the place of employment;
- it will provide notice to the union (if any) or other workers of its intent to hire a non-immigrant worker;
- it will provide a copy of the LCA to the non-immigrant worker prior to the beginning of his/her employment.
Other Employment Restrictions:
- H-1B status permits an individual to remain in that visa classification for a maximum of six years.
- The H-1B employee is only eligible to work for the employer which applied for and received approval of the H-1B petition.
- The H-1B employee is only permitted to work for the period of time specified on the Form I-797 (H-1B Approval Notice).
- The H-1B employee is permitted to hold only the specific position outlined in the H-1B petition. If the H-1B employee changes positions, the employer must file a new H-1B petition.
Termination and/or Change of Employer:
- If the H-1B employee chooses to terminate the employment relationship with the sponsoring employer, his/her H-1B status is automatically terminated.
- If the H-1B employee accepts a position with another employer, the new employer must file a new H-1B petition and is not legally able to employ the foreign national until it has received notice of receipt of the application from USCIS.
- If USCIS denies the application for new employment, the new employer is legally bound to terminate the H-1B employment upon receipt of the denial.
Eligibility
H-1B status is governed by federal laws and regulations, with requirements for eligibility. The position offered must require, at a minimum:
- completion of a U.S. bachelor’s degree or a foreign degree equivalent to a U.S. bachelor’s degree; or
- a combination of education, specialized training, and experience which are equivalent to a bachelor’s degree or higher degree.
In some cases, the employee will have to have his/her academic or professional credentials evaluated by an outside credentialing agency recognized by USCIS. If state or federal licensing or certification is required for the position, the foreign employee must hold the specific license or certificate.
Dual Intent Nature of the H-1B Category
Unlike most other non-immigrant categories, the U.S. Government allows "dual intent" for H-1B holders. Most of the non-immigrant categories require a foreigner to maintain a permanent residence in his/her home country and to verify that he/she has no intention to abandon that residence or to apply for U.S. permanent residence. Foreign workers in H-1B classification are not held to these requirements and are permitted to make an application for U.S. permanent residence while maintaining H-1B status. This is a very important distinction, especially for colleges and universities with foreign workers in tenure-track faculty and permanent research positions, as it permits the university to sponsor the foreign worker for U.S. permanent residence.
Prevailing Wage & Labor Condition Application
The employer is required to attest to a number of conditions before it can submit an H-1B petition to USCIS. Failure to follow these procedures or to abide by the regulations of the LCA, subjects the employer to serious consequences, which include:
- fines of $1,000 to $5,000 for each offense;
- payment of back wages;
- prohibition from hiring foreign workers for a year or more.
The employer is also required to maintain substantial documentation that it is in compliance with these regulations and to hold that documentation in a Public Access file which may be audited by the Department of Labor at any time.
OISS takes responsibility for the preparation, signing, and submission of the LCA, and to ensure that all hiring departments are aware of and prepared to comply with all of the federal regulations which govern the H-1B visa.
