H-1B FY 2020 Dates to Remember:

{H-1B FY 2019 filing date is already past)

Consult Attorney Now – March, 2019

Begin Process:           January, 2019

Filing Window:         April 1, 2019 – April 5, 2019

Start Work:                October 1, 2019 at the soonest

 

What is the H-1B visa?

The H-1B visa is for specialty occupations with U.S. employers, Department of Defense projects, and fashion models.  The specialty occupation subcategory is by far the most used H-1b type.  The H-1B visa provides employer-specific work authorization for up to three years at a time, with extensions possible after that.  This category of work permit is limited by the government and is in high demand.  Further, the category is highly regulated with complicated rules governing both the substantive qualification of each case as well as procedural requirements for employers and workers.  For most H-1Bs in the private sector, the filing deadline is the first business day in April, hence why many people refer to March and early April as “H-1B season.”

 

H-1B Requests for Evidence (“RFEs”)

Like any immigration petition, H-1Bs can be subject to Requests For Evidence (RFE) if the USCIS deems any part of the initial petition insufficient.  RFEs can be procedural, such as requests for updated forms if old ones were submitted.  RFEs can also be substantive, claiming that a petition doesn’t satisfy a necessary legal criterion and requesting evidence to demonstrate otherwise.

The recent trend for H-1B visa adjudication has shown a strong uptick in the issuance of RFEs.  Specialty occupations in the computer engineering, programming, and information technology field are especially suffering increased RFE scrutiny with daunting questions regarding the specialized nature of the job, whether the LCA corresponds to the job offer, the employee-employer relationship, the availability of work off site, or evidence about any proposed in-house projects.  These RFEs were issued on the vast majority of H-1B petitions filed by IT and software companies in the 2017 and 2018 cap seasons, and many companies felt targeted.  Too many denials can have a serious impact on a company when skilled workers are at such a high demand in the U.S.

An immigration attorney can counsel companies on how to be postured to minimize the chances and severity of any RFE that might be issued.  Successful H-1B petitioning requires a properly evidenced petition that is drafted with the latest USCIS policies in mind.   Language in the employment letter that was accepted without issue in 2016 will now result in a difficult RFE and possibly a denial.  The bar has risen for H-1B employers.  In addition, the government has made the Level 1 wage a tricky proposition for H-1B employers.  The USCIS practically treats a Level 1 wage LCA as adverse evidence in regards the new heated inquiry on “specialized occupation.”  As such, an immigration attorney should guide your company from the early phases of the hiring process, and if possible from the early phases of the company’s formation period.

 

H-1B Requirements for Employer:

The H-1B has different requirements for the U.S. employer and for the foreign beneficiary worker.  The employer must show, among other things, that the position qualifies as “specialty” under the USCIS standards, and the beneficiary worker must show, among other things, that he/she is qualified for the position.

H-1B employers can demonstrate a “specialty occupation” using any of four standards set forth in 8 CFR § 214.2(h)(4)(ii), which are:

( 1 ) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;

( 2 ) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;

( 3 ) The employer normally requires a degree or its equivalent for the position; or

( 4 ) The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

An employer can demonstrate the qualifying nature of the position by submitting evidence for any and all of these criteria, and the government only has to acknowledge one for your position to qualify.  In practice, certain positions and industries will be adjudicated with more scrutiny than others.  For example, Information Technology (IT), computer programming, and mobile app/software development positions are now being targeted and held to an increased burden to show a “specialty occupation.”

H-1B employers are required to uphold certain wage and labor standards, as governed by the Department of Labor.  This compliance is documented through a Labor Condition Application (LCA) for which the employer must attest that the worker will be paid the average salary for the position, location, and wage level.   The last factor, wage level, has become particularly important with the recent influx of Requests for Evidence (RFEs) issued on level 1 wage petitions that question both whether the position is a specialty occupation and whether it was properly certified as a level 1 wage.  The wage levels are ordered from level 1, entry level positions, to level 4, fully competent.  This newly implemented barrier for H-1B approval makes the job duties and requirements a delicate balancing act to ensure that the position is not deemed too entry-level to be specialized, nor too advanced to justify the level 1 wage.

Another important requirement for H-1B employers is to maintain a valid employee-employer relationship with the beneficiary and to have specialized work available for the duration of the visa period.  This evidence is simpler in the traditional scenario with one work location, but the USCIS has a high evidentiary requirement where the work will be done at one or more offsite location belonging to a third-party.  The recent USCIS Memo PM-602-0157 discusses such arrangements and makes clear that certain documents from the end-user of the beneficiary’s services (the “third party”) will be required to show that there is actual, not speculative, work available and that the petitioner will be the true employer of the H-1b worker and not just a staffing or placement agent.  The evidence requirements include documents such as contracts, work orders, or purchase orders between the H-1B petitioner and the end-user.  This evidence will show that there is an actual assignment and not a speculative need for work.  Ideally, these contracts or orders will have a term that is as long as the requested H-1B period.  Further, the USCIS will want evidence that the work at the third-party location will be specialty, which can be satisfied with a statement from an official of the end-user company describing the position duties with sufficient complexity to be considered specialty with consideration for the assigned wage level.  This letter must be from the end-user, and cannot be from an intermediary vendor company.

 

H-1B Requirements for Foreign Worker:

The USCIS also has requirements for candidates who want to accept a position in H-1B status.  The provisions in 20 C.F.R. § 655.715 require H-1B beneficiaries to fit into one of the following categories:

  • Full state licensure to practice in the occupation, if required in the jurisdiction of intended employment;
  • Completion of a U.S. bachelor’s degree, or a properly evaluated equivalent foreign degree, in a field of study related to the job duties of the proffered position, or;
  • Related experience with progressively increased responsibility. 8 CFR § 214.2(h)(4)(iii)(D)(5) dictates that each three years of such experience will replace a year of undergraduate education.

These requirements are held to a high degree of scrutiny under President Trump’s “Buy American Hire American” policy.  For example, the USCIS might question whether a bachelor’s degree in electronics engineering is reasonably related to a computer programmer position.  The best way to demonstrate a nexus between degree and job duties is to break down the candidate’s class transcript and show how each class he took will contribute to his ability to perform certain listed job duties for the proffered position.

If the candidate is filing on the basis of foreign degrees only then the degree will have to be reviewed by an accredited evaluation service and certified to be equivalent to a U.S. degree in a certain subject-matter.  Without this, the USCIS will not accept a foreign degree as the basis of your H-1b qualification.  There are numerous agencies that will perform such evaluations, but they must be able to review a transcript with a full class listing to give a full evaluation.

If the H-1B petition is being filed as a change or extension of status (as opposed to consular processing) then the beneficiary should also include evidence of maintained status.  This can vary depending on what status the beneficiary is in at time of filing.  This can include visa, I-94, I-20, OPT card, and pay stubs, if applicable, to show you’ve only been working with the properly authorized employer.  The particular documents you should submit as evidence can differ if you are an F-1 student, extending a previous H-1B, or changing status from another nonimmigrant category.

 

What is the H-1B “lottery” system, and can I increase my chance of acceptance?

Congress has capped the number of new H-1B visas that can be issued each year to 65,000 plus an extra 20,000 for candidates who graduated from an accredited U.S. Master Degree program.  The demand has consistently outran these limitations in all recent years, causing the USCIS to determine “lottery” style which of the ~200,000 filings will be accepted and adjudicated.

Cap-subject petitions (initial H-1Bs that are subject to lottery) must be filed during the first week of April.  Generally, the USCIS will begin issuing receipt notices and rejection notices as early as late April, but sometimes as late as June.  If you are rejected, the USCIS will not even look at the merits of your case and will return the petition and filing fees.  If you are accepted, the USCIS will case the filing fees and your case will then undergo adjudication to determine if an H-1B can even be issued.  In other words, the lottery is only the first hurdle.

There are legal ways to increase your chance of surviving the H-1B lottery and getting your petition accepted for adjudication.  First, having a Master’s Degree from an accredited U.S. University will increase your chances by entering you into the Master’s cap.  To explain the Master’s cap, after the USCIS selects 65,000 H-1B petitions from the entire stack of submitted H-1B petitions the remaining unchosen petitions are divided into two sub-groups:  unchosen regular petitions which are rejected, and Master’s cap petitions which are then put into the secondary Master’s cap lottery to select 20,000 more petitions.  There are other benefits to attending a U.S. university for your Master’s degree, such as the ability to perform paid work under an Optional Practical Training (OPT) program and the cap-gap extension if you file for H-1B while on OPT.

Another way to increase chances of H-1B petition acceptance is to be the beneficiary of multiple petitions.  The same U.S. employer cannot file multiple petitions for the same beneficiary, but it is perfectly legal for more than one U.S. employer to file petitions to hire the same person for different jobs.  Any or all of them can be accepted, and if approved the Beneficiary can work them at the same time if filed properly.  The hardest part of this method is convincing multiple U.S. employers to sponsor you, as some people struggle to find even one willing U.S. sponsor employer.  However, for those with multiple employer sponsors, your chances of having at least one of your petitions selected will increase.  If you submit two petitions and only one is accepted, you can submit an amendment petition to reflect the change in employers and begin working for the new employer upon receipt notice of your approval amendment petition.

It should also be mentioned that you can totally skip the lottery and filing deadlines by gaining an employment offer from certain “cap exempt” entities, such as universities and government research institutions.  If your petitioner is cap exempt, they will be able to file your petition at any date without being bound to the April filing window.  Also, cap exempt petitions go straight to adjudication without the need to go through a “lottery” because they are exempt from the cap on H-1B visas.  This can be a good option to entertain if your current status is ending and the regular H-1B filing window is too far in the future to change status.

 

How much does an H-1B cost?

The cost of an H-1B will depend largely upon the complexity of your case, the size and composition of the petitioning company, and whether the filing is an initial petition, amendment, and/or extension.

The H-1B filing fees can be confusing because there are four categories of fees that a Petitioner can be assessed. The I-129 filing fee (currently $460) has to be included anytime you submit that form whether it be for initial filing, amendment, or extension (with the exception of fixing a government error).  The USCIS requires a Fraud Prevention and Detection Fee (“anti-fraud fee”) for every initial H-1B or change of employer H-1B petition filed by that employer.  If the employer is H-1 and/or L dependent or a willful violator then there will also be a hefty $4000 extra fee assessed along with the anti-fraud fee.  Lastly, the USCIS charges an ACWIA fee, which originates from the Bill Clinton era American Competitiveness and Workforce Improvement Act of 1998.  This ACWIA fee is $750 for companies with 1-25 employees, and is $1500 for companies with 26 or more employees.  The H-1B filing fee examples below will demonstrate various filing fee scenarios:

Initial cap-subject H-1B petitions for somebody who is not already on H-1B will require the following checks to the USCIS:

  • Filing fee for I-129 ($460);
  • ACWIA check ($1500 if >25 employees, $750 if 25 or fewer), and;
  • Fraud prevention and detection fee ($500).

Amendment H-1B petitions are those filed by the same Petitioner and Beneficiary to request approval of a material change in the work location, job duties, conditions, etc.  An amendment for somebody already in H-1B status that is not requesting an extension of the status will only require the I-129 filing fee, which is currently $460.

Amendment plus Extension H-1B petitions are those filed by the same Petitioner and Beneficiary to request approval of a material change in the original petition and also request an ending date beyond that originally granted.  This type of petition will be subjected to the same filing fees as if it was an extension, see below.

First Extensions by the same Petitioner and Beneficiary will be subject to the ACWIA Fee but not the anti-fraud fee, requiring the following checks to the USCIS:

  • Filing fee for I-129 ($460);
  • ACWIA check ($1500 if >25 employees, $750 if 25 or fewer), and;

Second and Subsequent Extensions by the same Petitioner and Beneficiary will not be subject to either the ACWIA fee or the anti-fraud fee, requiring only the $460 I-129 filing fee.

Change of Employer, meaning a new Petitioner filing for a Beneficiary already in H-1B status (including concurrent employment where the Beneficiary will keep both jobs).  In this scenario, the USCIS will require the following fees:

  • Filing fee for I-129 ($460);
  • ACWIA check ($1500 if >25 employees, $750 if 25 or fewer), and;
  • Fraud prevention and detection fee ($500).

These scenarios don’t take H-1 and/or L dependency into account, which is a large fee levied upon companies whose workforce is comprised of a substantial percentage of foreign laborers.  The USCIS considers employers dependent if they employ 50 or more employees in the United States if more than fifty percent (50%) of these employees are in H-1B, L-1A or L-1B nonimmigrant status.

 

Can I extend my H-1B status?

Once granted H-1B status, you can extend your H-1B if the job offer still exists, but there are numerous regulations regarding whether you can extend.  H-1B status is granted for up to three years at a time, with extensions up to three years.  Employers are responsible for return transportation if the employee is terminated before the end of the employment period, unless the employee voluntarily resigns.

Typically, duration of stay in H-1B status (and/or L status) is limited to six years, after which a year abroad would be needed before readmission in H-1B status—but this rule is subject to exceptions.  First, a worker can recapture time spent abroad or in another status (except L status) during this six-year period.  So let’s say that a worker was granted three years of status in 2011 and a three year extension in 2014, but spent an aggregated two years abroad (as proven by passport stamps).  In that case, the worker could request an extra two years after 2016  based on the recaptured time spend abroad.  The same would apply if that employee spent two years in the USA in H-4 status.  In addition to recapturing time, an H-1B worker can request extensions of his H-1B status beyond six years under two circumstances:

  • H-1B worker has a pending I-140 or I-485 for EB-1, EB-2, or EB-3 status.
    • This exception comes from section 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21). These extensions can be granted in one-year increments until a final decision is made on the I-140 petition. Be aware that to qualify, the I-140 or Labor Cert must have been filed at least a year before using all six years of H-1B status.
  • H-1B worker has approved I-140 and would qualify for Adjustment of Status but not for per-country limitations.
    • This exception comes from section 104© of the AC21. This type of extension can be granted for up to three years until a final decision is made on the I-140 petition. To determine if this exception applies, consult your attorney for a close assessment of your I-140 priority date and the DOS Visa Bulletin.

 

240-day Work Extension Rule:

If your H-1B application is filed on time you will benefit from an automatic extension of your work authorization that lasts 240 days from the expiration of your current H-1B status or until your extension petition receives a final decision.  Note: H-1B workers should not travel during this 240-day automatic work authorization extension.  Doing so will be considered an abandonment of the extension petition, causing the worker to fall out of status.

Workers must be the beneficiary of a non-frivolous petition with the same employer and continue following all immigration regulations to qualify for this automatic extension.  Work is not authorized after the 240 days, even if the extension petition is still pending.  Employers may not know how to annotate this extension in the I-9 employment authorization form, in which case they should consult an immigration attorney.

 

What if my job location changes while I’m on H-1B status?

An I-129 will be required for changing assignments to a new work site with the same employer and for seeking a totally new job with a new employer.  In the first instance it would be filed as an amendment while the latter would be filed as new employment.

For changes in work site with the same employer, the Matter of Simeio decision along with USCIS policy memos on third party placement govern when new or amendment petitions should be submitted on behalf of those already on approved H-1B visas to reflect a material change.  The short answer is yes, do submit an amendment or new petition.  As a benefit, H-1B portability regulations allow the beneficiary to begin employment with the new employer or at the new work site once the USCIS has issued the receipt notice for the new or amended I-129.  This portability benefit is only effective as long as the new or amended I-129 is pending adjudication. If approved, the beneficiary can continue to work at the new site.  If denied, the beneficiary should resume working at the previously approved work site.  Also note that an extension can be requested concurrently with the new or amended petition if the beneficiary qualifies as cap-exempt: this could be from having time left under the “six-year limitation,” or being excepted from that limitation due to a pending Green Card application.

It used to be more important to consider whether the new work location was in a new Metropolitan Statistical Area (MSA): if so, no new LCA required; if elsewhere then apply for a new LCA and ensure the pay rate complies with the new LCA.  Although the original Simeio decision provided that no amendment petition was required for new work locations within the same MSA, recent adjudication trends indicate that the standard for “material change” has risen and now amendment petitions are advised for any departure from the originally submitted itinerary.  The best method to avoid the need to amend is to fully plan and present the itinerary with the first I-129, as described below, but sometimes unplanned changes happen, in which case an immigration attorney can help determine the best procedure.

A USCIS policy memo (PM-602-0157) adds to the guidance of Simeio for third party work site situations under the new adjudicatory standards.  This memo makes clear what evidence is required if an employer seeks to contract their worker(s) out to perform services at the location of another company, i.e.,
end-client.”  The memo states a requirement for a detailed itinerary where the worker will perform at more than one location.  Best practice is to provide the best itinerary possible even if it only involves one location.

The USCIS memo explains the requirement to demonstrate an “employer-employee” relationship despite the third party placement.  This can be demonstrated with a contract or work order that includes both the employer and the end-client.  However, a robust evidentiary presentation will also include language in the employee handbook, employer letter, and a full array of objective evidence such as pay stubs, emails, worker IDs, etc., all of which should substantiate the employer-employee relationship between the H-1B worker and the employer.  These pieces of evidence should make clear that the H-1B works for the petitioner as an employee, and is merely assigned to perform services at the third party location as a contractor for that company.  This means that the H-1B worker is controlled by the petitioner, and not by the company who operates at the third-party work site.

Filing a new or amendment I-129 will open the case up to the same barriers that were overcome with the original petition with no deference to the previous approval.  An October 3, 2017 USCIS policy guidance made clear that adjudicators should no longer give deference to a previous approval, even with the same employer, worker, and assignment.  In other words, each time a new I-129 is submitted because of a material change in the job the USCIS will start their inquiry from the beginning regarding the beneficiary’s qualifications, the job’s specialized nature, etc.  This is less of a concern if the case is simple and was easily approved the first time.  But more often, recently petitions in the computer, IT, and software industries have been hard-won visas with many obstacles and long wait times burdening the process.  For those employers, the notion of re-inviting USCIS adjudication is daunting.  Contact your immigration attorney today to make sure your business is postured for success in the upcoming H-1B filing season.

 

H-1B Dependents:

Dependents include the spouse and/or unmarried children (under 21 years old) of the H-1B worker, or “principal.”  They qualify for H-4 dependent status.  If processing the H-1B visa at a consulate the dependents can simply file DS-160s and join the principal H-1b applicant at the visa interview.  The dependents should bring proof of their relationship to the principal.  Upon a successful interview, the consulate should take a short processing period before returning the passport with H-visas stamped inside.  If already in the United States in H-4 status, extensions will require the filing of I-539 to the USCIS.

H-1B dependents typically do not get authorization to work, though there are some exceptions.  The spouse of an H-1B worker can apply for an Employment Authorization Document (EAD) if the H-1B spouse is either of the following:

  • H-1B spouse is the principal beneficiary of an approved Form I-140, Green Card Petition for EB-3, EB-2, or EB-1; or
  • H-1B spouse has been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act (AC21), under which H-1B workers with pending Green Card applications can work in H-1B status beyond the typical six-year limitation.