The Nonimmigrant H Visa - Professional Specialty Workers

THE H NONIMMIGRANT VISA CATEGORY

OVERVIEW OF THE H-1B (FORMERLY, H-1) NONIMMIGRANT PROFESSIONAL AND SPECIALTY OCCUPATION WORKER (FORMERLY, DISTINGUISHED MERIT AND ABILITY) VISA PETITON PROCESS:

The H-1B nonimmigrant visa process has undergone several significant changes since the late-1980’s. The post-October, 1991 regulations implemented guidelines which required the filing and approval of a Labor Condition Application (“LCA”) on Form 9035 with the U.S. Department of Labor before the H-1B extension could be approved by the INS.

On November 29th, 1990 the Immigration Act of 1990 was enacted into law. The law amended the Immigration and Nationality Act, 8 U.S.C. 1101 et seq. Prior to the regulatory changes, there was no limitation on the number of H-1 nonimmigrants that could be brought to the United States. The 1990 Act implemented a sixty five thousand (65,000) per annum cap on the number of H-1B nonimmigrants (per fiscal year) that could enter the United States. Furthermore, prior to October 1991, the U.S. Department of Labor was not involved in the H-1 nonimmigrant visa process. However, as a result of perceived abuses by the public to the H-1 nonimmigrant visa process (as reported in the Booze Allen & Hamilton, Inc. report), and as result of substantial congressional hearings on the H-1 and on ancillary nonimmigrant issues, a legislative determination was made to require the U.S. Department of Labor to approve certain representations made by the employer/sponsor in connection with the H-1B nonimmigrant visa process.

Thus, prior to October 1991, an H-1 nonimmigrant visa petition could be made by a petitioner/employer/sponsor by preparing several documents: Form G-28 (if the employer is represented by counsel)), Form I-129B (the H-1 Petition), Form I-539 (if the prospective beneficiary was in the United States in some other nonimmigrant visa status), and supporting documents (which, in most cases, would have included a letter from the employer affirming the temporary nature of the transfer, the responsibilities for the job position offered and the salary to be paid to the proposed nonimmigrant beneficiary).

The supporting documentation sought to prove that the prospective beneficiary was qualified for the “distinguished merit and ability” position offered by the petitioner/employer/sponsor. In most cases this entailed the ability of the prospective beneficiary to show that his or her foreign university degree was the equivalent of a U.S. degree by obtaining an academic credentials evaluation. As previously pointed out, the H-1 was a temporary visa with a specific limitation on the period of stay in the United States. The initial petition was approved for up to three years and it was extendable for two years (with the possibility of a one year extension beyond the five (5) year total in the event of an “extraordinary circumstance”). The representations made by the employer/sponsor/employer, and/or by the prospective beneficiary, in connection with the H-1 nonimmigrant visa petition were made to the U.S. Department of Justice, Immigration and Naturalization Service.

On August 5, 1991, DOL proposed an extensive set of regulations governing the “filing and enforcement of labor condition applications filed by employers seeking to use aliens in specialty occupations on H-1B visas.” The regulations stated that the U.S. Department of Labor’s role (as the DOL had interpreted the Act) was to “ provide greater protection than under prior law for U.S. and foreign workers without interfering with an employer’s ability to obtain the H-1B workers it needs on a timely basis.” Furthermore, the DOL states that “the proposed procedures and documentation requirements are sufficiently specific to enable investigations of complaints against employers and enforcement of sanctions where necessary.” The regulations focused upon the extent to which the wages to be paid to the prospective H-1B nonimmigrant workers “and to other workers in the occupational classification at the place of employment be the higher of the actual wage rate paid to such workers or the prevailing wage for the occupation in the area of intended employment.”

Thus, after October 1991, the H-1B nonimmigrant visa petition process required that the U.S. petitioner/employer/sponsor to prepare and file a Labor Condition Application (LCA) with the Regional Office of the DOL. The LCA, Form 9035, is a form, which must be carefully prepared and posted in at least two conspicuous places at each worksite. The LCA requires the petitioner/sponsor/employer to describe the position, the salary, and the source used to obtain the prevailing wage for the occupation. The LCA also requires the petitioner/sponsor/employer to attest to complex facts concerning the offered wage, working conditions, and labor conditions at the proposed site of employment. Completing the LCA was just the beginning.

The petitioner/sponsor/employer is also required by the regulations to maintain wage and hour records, as well as information concerning working conditions for all similarly situated employees (the petitioner/employer/sponsor is not required to submit this information to the DOL but is required to maintain this information at the place of employment or at the petitioner/employer/sponsor’s principal place of business in the U.S.). Upon request, these records must be provided to DOL's Wage and Hour Division. If a petitioner/sponsor/employer does not document the wage, pay the required wage or maintain the required records, the regulations made the petitioner/employer/sponsor liable for substantial penalties including back pay and fines. The petitioner/employer/sponsor could even lose the right to apply for H-1B nonimmigrant visas as well as other immigrant and nonimmigrant visas for up to one year.

Now, and following the implementation of the regulations in October, 1991, an H-1B nonimmigrant visa petition could be made by a petitioner/employer/sponsor by first, filing, and having approved, an LCA with the Regional Office of the DOL. Next, the approved LCA, along with several forms (G-28 (if the employer is represented by counsel)), Form I-129H (the H-1B Petition), and supporting documents (which, in most cases, would have included a letter from the employer affirming the temporary nature of the transfer, the responsibilities for the job position offered and the salary to be paid to the proposed nonimmigrant beneficiary).

The documentation for the prospective beneficiary is submitted to demonstrate that he or she is qualified for the “professional and specialty occupation” position offered by the petitioner/employer/ sponsor. While the legal standard changed in its terminology, the legal standard continues to entail the same general criteria as the “distinguished merit and ability “ standard that existed prior to the 1991 regulatory modifications to the law. Thus, the prospective H-1B beneficiary was required to show that his or her foreign degree (or work experience) is equivalent to a U.S. degree by obtaining a credentials evaluation. The H-1B visa has associated with it a specific limitation on the period of stay in the United States. The initial petition was approved for up to three years, extendable for a second three year period.

On October 21, 1999, the American Competitiveness and Workplace Improvement Act of 1998 (“ACWIA”) made several significant modifications to the H-1B nonimmigrant visa category. First, the sixty-five thousand (65,000) cap on new H-1B visas granted for each fiscal year (October 1^st to September 30^th), which was established in pursuant to the Immigration Act of 1990, was increased. Next, the filing fee for the H-1B nonimmigrant visa was increased to six hundred and ten dollars ($610.00). The one hundred and ten dollar ($110.00) portion of the fee is the INS filing fee and the five hundred dollar ($500.00) portion of the fee is a mandatory employer contribution to a special fund to be used to train U.S. workers. The employer must pay the five hundred dollar ($500.00) portion of the fee and may not seek reimbursement of this payment from the prospective H-1B nonimmigrant. Third, ACWIA defines “H-1B Dependent Employers” and requires such employers to present additional attestations in connection with the H-1B nonimmigrant visa petition.