What is the H-1B Visa?

The H-1B visa is non-immigrant visa for individuals coming to the United States on a temporary basis to work in a specialty occupation (H-1B), professional nurses in areas with a shortage of health professionals (H-1C); temporary agricultural worker (H-2A); skilled and unskilled trainees (H-3); or accompanying family members (H-4).

            H-1B Visa

A specialty occupation is a general term that can lead to confusion.  The H-1B is an attempt to fill employment positions that required a specific level of education with an individual who possesses that level of education (or equivalent training).  The goal is to fill an employment position that otherwise would not be filled by a U.S. worker.  This is why there is an emphasis on “specialty” as to limit the types of positions that may be filled by an H-1B worker.  In order for an employment position to qualify as a specialty occupation it must meet one of the following criteria:

·        Bachelor’s or higher degree or it equivalent is normally the minimum entry requirement for the position;

·        The degree requirement for the job is common to the industry or the job is so complex or unique that I can be performed only by and individual with a degree;

·        The employer normally requires a degree or its equivalent for the position; or

·        The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s degree or higher.[1]

A person seeking an H-1B visa must the following criteria:[2]

·         have completed a U.S. bachelor’s degree or higher degree required by the specific specialty occupation from an accredited college or university;

·         hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation;

·         Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment; or

·         Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

The H-1B visa requires the submission of a labor condition application (LCA) to the U.S. Department of Labor.[3]  The LCA (as distinguished from the labor certification application) means that the employer makes certain promises to the Department of Labor, but does not submit any documents to support those promises.  The employer is required to keep supporting documentation on file, to be available for public examination[4].  In the LCA the employer promises that:[5]

1) it will pay the required wage: the higher of the prevailing wage and the actual wage;

2) it will provide working conditions for the non-immigrant that will not adversely affect working conditions of workers similarly employed;

3) there is not a strike or lockout in the occupational field at the place of employment; and

4) it has provided notice of the filing of the LCA to the applicable union representative, or if there is not such representative, has provided notice of the filing through posting in the workplace or electronic notification to employees in the occupational classification.[6] 

Additional attestations may be required if the employer is considered H-1B dependent, a willful violator or is a recipient of TARP funding.  These additional attestations include:

1) the employer did not and will not displace a U.S. worker within 90 days before and 90 days after the filing of the H-1B petition.;

2) the H-1B worker will not be placed at a third party worksite, unless the petitioner has inquired whether there will be a displacement of a U.S. worker during those 90 day periods and has no knowledge of displacement;

3) the employer has taken good faith steps to recruit U.S. workers for the position and has offered the job to any U.S. worker who applied and is at least as qualified as the H-1B. [7] 

The number of H-1B visas available per fiscal year was put in place by Congress with the passage of the Immigration Act of 1990.  Congress set the cap at 65,000.[8]  Congress temporarily raised the cap number during at various times from 1999-2001.[9]  An exemption was also provided for higher education institutions and nonprofit research institutions.[10]  However, in 2004 the cap reverted to 65,000 where it remains.

            The H-1B Lottery

The H-1B visa is a primary example of the competing interests in non-immigrant visas. On one side our parties that argue H-1B visa holders come to the United States and take high paying positions from the U.S. worker.  On the other side companies argue that they are unable to fill positions in the United States due to a lack of qualified workers.  These competing interests led to the creation of the H-1B Lottery.  The lottery attempts to cope with the amount of applications that far exceed the number of H-1B visas available each year.

[1] INA § 214.(i)(1); 8 C.F.R. 214.2(h)

[2] INA § 101(a)(15)(H)(1)(b)

[3] 8 C.F.R. § 214.2(h)(4)(i)(B)(l) and 214.2(h)(4)(iii)(B)(l)

[4] INA §§ 212(n)(1) and (t)(2)(A)

[5] INA § 212(n)(1)(A)-(D) See generally, Buffenstein, Daryl and Bo Cooper, “Business Immigration Law & Practice, Vol. 1, 363, AILA.

[6] INA §§ 212(n)(1)(A)-(D) and (t)(1)(A) – (D). 

[7] INA § 212(n)(1)(E)-(G).

[8] INA § 214(g)(1)(A)(vii); 8 C.F.R. § 214.2(h)(8)(i)(A)

[9] American Competiveness in the Twenty-First Century Act of 2000, PL No. 106-313, § 102(a)(October 17, 2000).

[10] INA § 214(g)(5)(C)