Although the H visa category covers a number of different categories including the H-2A (temporary agricultural worker visa), the H-2b (temporary non agricultural worker visa) and the H-3 (trainee visa), the H-1b is the most popular visa available in the United States. The H-1b is used widely to secure the employment of skilled employees in many industries and in education. The H-1b category is backed by a complex web of regulations involving the Department of Labor, U.S. Citizenship and Immigration Services and the Department of State.
What is an H-1b visa?
The H-1b classification allows qualified workers to come to the United States to perform services in a specialty occupation. Section 214 of the Immigration and Nationality Act defines a specialty occupation as one that requires the:
(1) theoretical and practical application of a body of highly specialized knowledge; and (2) 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. The Code of Federal Regulations sets down criteria for meeting this definition. An employer needs to show:
(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. 8 C.F.R. §214.2 (h)(4)(iii)(A).
In order to employ an H-1b employee an employer must file and secure approval of a petition for that worker from United States Citizenship and Immigration Services. In some situations an employee can accept and commence new employment with a new H-1b employer without awaiting the final approval of the petition. However, employers should work with their lawyer to determine whether the approval must be granted prior to commencement of employment, or whether and under what conditions employment can commence at an earlier time.
How many H-1b visas are available each year?
Under the H-1b program there is a cap on available visas of 65,000 each year. Once again there are exceptions. Employers should consult with legal counsel to determine whether they meet an exception to the H-1b cap.
Is there a maximum period of stay under the H-1b program? 3
There is also a maximum period of stay under the H-1b program of 6 years and once again there are exceptions that should be examined with your lawyer. Absent an exception the employee must then spend one year outside the United States prior to being granted H-1b status again.
Are there special wage requirements under the H-1b program?
In order to protect the American workforce there are a number of protective measures in place to ensure the H-1b program is not used simply to hire less expensive foreign labor. One requirement is that the employer pays the prevailing and actual wages for the job within the geographic area of employment.
The prevailing wage is based on wages paid to similarly situated workers in the geographic region. The actual wage is the wage paid by the specific employer to similarly situated workers employed by the employer.
In order to ensure that the wage requirements are complied with, the employer must generally obtain certification of a Labor Condition Application by the Department of Labor prior to securing an H-1b employee’s services. There are some allowances for short term employment at a secondary location and employers should once again consult with their attorney about whether a new LCA is required.
What if the employment terminates during the effective period of authorized stay?
Employers should be aware that there are actions that may need to be taken in the event that a worker’s employment is terminated during the period of authorized stay. Employers can be held liable for back wages if the regulations regarding termination of an H-1b worker are not followed. Employers may need to notify United States Citizenship and Immigration Services of an employee’s termination in order to avoid assessment of back wages should the employee assert a claim to collect those wages. In the event the employer does notify United States Citizenship and Immigration Services of the employee’s termination, the employee cannot collect the back wages. Regulations concerning back wages are intended to address the issue of “benching” which is a situation where the employer lays off an employee in order to save itself from paying a salary. If the employer lays off an H-1b employee then the employer must either continue to meet its wage responsibility or terminate the employee. The employer should note that the wage liability does not apply to employee initiated termination or employee initiated unpaid leaves of absence. The employer should consult with counsel prior to taking any action that interrupts the productive activity of the employee.
In addition, employers should be aware that there is a return trip requirement that may make an employer liable for the travel expense of the employee that allows the employee to return to their home country.
Can an employee pursue educational opportunities in the U.S. while on an H-1b?
Yes. Nothing in the regulations or the statute prohibits an employee from pursuing an educational opportunity while in the U.S. on H-1b status. However, how the employee goes about doing this is a matter that should be raised with your immigration lawyer. For instance, if an employee works for a computer company and wishes to take an unpaid leave of absence to pursue a degree in oceanography then that may not be permissible unless the computer company produced products related to oceanography and the education would further the employee’s productive capacity with the employer.
The key to pursuing an education as well as working on an H-1b lies in the nature of the education. The education must be incidental to employment and cannot be the sole reason the employee is in the U.S.. Let us assume in our above example that the employer has no tie to oceanography. If the employee is working full time for the computer employer, but really loves oceanography and wants to pursue a few courses here and there at night to fill his or her time then that action would be allowed. It is not the focus of the employee’s purpose in being in the U.S. and is just incidental. However, if the employee ceased work and went to school for an entire degree in oceanography full time, such educational pursuit likely is not permissible absent a change of status to an F-1 student visa.
In the same example, if the computer company was in the business of producing products related to oceanography and the employee took an unpaid leave of absence to pursue the degree full time then there is an argument to be made that this is permissible. However, great care must be taken in undertaking such a move. The key is to maintain the employer/employee relationship. There should be a written record of the arrangement, the arrangement should be shown to further productive capacity of the employee with the employer, there must be a distinct understanding that the employee would return to his or her position at the conclusion of the educational program and must receive the same wage as prior to the leave of absence, the employee’s duties should not change, the employer should not hire someone on a non-temp basis to fill the position, and should do everything it can to document the reality that the employee is not terminating the employer/employee relationship, but is merely on leave.
This is a highly sensitive task and so if the employer and employee decide to pursue any educational opportunity then a lawyer should be consulted.
What if job duties, salary, etc., change?
Material changes in the working conditions of the employee can require an amended H-1b petition. A lawyer should be consulted to determine if this will be required.
As any employer can see, the H-1b area is very complex. There are many aspects of the H-1b program that require a careful assessment prior to the employer proceeding on a course of action. Employers should be careful to keep excellent documentation of an employee’s service with the employer and to involve their lawyer in the decision making process regarding employees on H-1b visas. Failure to do so can result in revoked petitions, liability of back wages, and a whole host of other implications.