Understanding H-1B Sponsorship for Employers and Foreign Professionals
The H-1B visa allows U.S. employers to employ qualifying foreign professionals in specialty occupations. It is commonly used for positions requiring specialized knowledge and at least a bachelor's degree in a directly related field, or its equivalent. H-1B employment may be full-time or part-time, depending on the position and petition.
An H-1B case involves more than determining whether a candidate has a degree. The employer, offered position, worker's qualifications, required wage, work location, and applicable H-1B cap rules can all affect the petition. Some employers must also participate in the annual H-1B registration and selection process before filing a petition, while other H-1B cases may be exempt from the annual numerical limit.
The Foundation of an H-1B Case
A successful H-1B case begins with both a qualifying position and a qualifying foreign professional.
For most H-1B petitions, the offered position must qualify as a "specialty occupation." The regulations define a specialty occupation as one requiring the theoretical and practical application of highly specialized knowledge and at least a bachelor's degree or higher in a directly related specific specialty, or its equivalent, as the normal minimum requirement for entry into the occupation.
A position does not qualify simply because the employer prefers to hire someone with a bachelor's degree. The nature of the work and the knowledge normally required to perform it are important. A general degree without further specialization is not sufficient when the position requires specialized knowledge. On the other hand, a position may potentially accept more than one degree field when each qualifying field has a logical connection to the duties of the position.
The foreign professional must also be qualified to perform the specialty occupation. Depending on the circumstances, qualification may be established through:
a qualifying U.S. bachelor's or higher degree;
a foreign degree determined to be equivalent to the required U.S. degree;
an unrestricted state license, registration, or certification authorizing the individual to fully practice the specialty occupation in the state of intended employment; or
qualifying education, specialized training, and progressively responsible experience that is determined to be equivalent to the required degree.
Licensure can be particularly important for occupations in which state law requires authorization to practice. The appropriate evidence therefore depends on both the occupation and the individual's education, training, experience, and professional credentials.
These rules make the relationship between the position and the worker important. A strong candidate does not make a position a specialty occupation if the job itself does not satisfy the H-1B standard. Likewise, a qualifying specialty-occupation position does not establish eligibility if the proposed worker does not have the education, equivalency, license, or other qualifications required to perform it.
The Employer's Role Before Filing
H-1B is an employer-sponsored classification. A U.S. employer generally must have a bona fide job offer for the foreign professional and file the H-1B petition with U.S. Citizenship and Immigration Services ("USCIS").
Before filing most H-1B specialty-occupation petitions, the employer must first obtain a certified Labor Condition Application ("LCA") from the U.S. Department of Labor. The LCA identifies information including the occupational classification, area of intended employment, wage, and period of employment and contains several employer attestations.
One of the most important obligations concerns wages. The employer must pay the H-1B worker at least the required wage, which is generally the higher of the employer's actual wage for similarly situated employees or the applicable prevailing wage for the occupation and area of intended employment.
The actual-wage and prevailing-wage concepts serve different purposes. The prevailing wage generally reflects compensation for the occupation in the relevant labor market. The actual wage looks to what the employer pays other workers with similar experience and qualifications for the specific employment. Depending on the employer's workforce and compensation structure, the actual wage may be higher than the prevailing wage.
The employer also makes attestations concerning working conditions and assumes notice, documentation, and recordkeeping obligations under the LCA regulations. Because the LCA is connected to the occupation and area of intended employment, changes in where the H-1B worker will perform the job can sometimes affect the employer's immigration obligations.
A certified LCA does not by itself establish that the position qualifies as a specialty occupation. USCIS separately determines whether the position and foreign worker satisfy the requirements for H-1B classification when it adjudicates the H-1B petition.
Two H-1B Pathways: Cap-Subject and Cap-Exempt Employment
An important early question in H-1B planning is whether the proposed employment is subject to the annual H-1B numerical limit.
Federal law generally provides 65,000 H-1B numbers each fiscal year under the regular cap. An additional exemption from that numerical limit is available for up to 20,000 qualifying foreign professionals who have earned a master's or higher degree from a U.S. institution of higher education.
Demand for cap-subject H-1B numbers has historically exceeded the number available. For that reason, employers seeking a cap-subject H-1B generally must participate in USCIS's electronic registration and selection process before they may file the full H-1B petition.
The registration process and selection procedures can change. Employers considering H-1B sponsorship should therefore review current government guidance and the firm's latest H-1B updates rather than relying on dates, fees, or procedures from a prior year. Other temporary government restrictions may also affect H-1B petition filing, visa issuance, or entry.
Not every H-1B petition is subject to this annual process. Certain employment is exempt from the numerical cap, including qualifying employment involving institutions of higher education, related or affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations. Other circumstances may also allow a worker to file an H-1B petition without going through a new cap selection, including certain workers who have previously been counted against the H-1B cap.
Whether a particular case is cap-subject or cap-exempt depends on the employer, the proposed employment, the worker's prior H-1B history, and other facts. An employer should therefore determine the applicable H-1B pathway before relying on the annual registration process or assuming that registration is unnecessary.
From Sponsorship to the H-1B Petition
Once the employer has determined the appropriate H-1B pathway and obtained the required certified LCA, the employer files Form I-129, Petition for a Nonimmigrant Worker, with USCIS.
For a cap-subject case requiring registration and selection, the employer generally cannot file the cap-subject petition unless the applicable registration has been selected. A qualifying cap-exempt petition may be filed without going through that annual selection process.
The H-1B filing generally includes evidence addressing the employer, the offered position, the duties and requirements of the job, the LCA, and the foreign professional's qualifications. Depending on the occupation and facts of the case, supporting evidence may include educational records, degree evaluations, professional licenses, information about the employer and position, and other documentation showing that the proposed employment satisfies the H-1B requirements.
USCIS may approve the petition, deny it, or request additional evidence before making a decision. Petition approval also does not always mean that the foreign professional can immediately begin working in every situation. The next step depends on whether the worker is already in the United States, whether a change or extension of status was requested, whether the individual needs to apply for an H-1B visa abroad, and the requested employment start date.
For many employers, the H-1B process therefore involves several connected stages: determining eligibility, obtaining the LCA, completing registration and selection when required, preparing the Form I-129 petition, and addressing the worker's status or visa process as applicable.
Employment After H-1B Approval
H-1B authorization is connected to the petitioning employer and the employment described in the approved petition. Employers and workers should therefore consider immigration consequences when the employment arrangement changes.
An H-1B worker may be able to change employers. Under the H-1B portability provisions, an eligible worker may generally begin employment with a new H-1B employer after the new employer properly files a nonfrivolous H-1B petition, or on the petition's requested start date if later, provided the applicable statutory requirements are satisfied. The new employer must still obtain the appropriate LCA and file its own petition.
Material changes to the terms and conditions of previously approved employment require an amended or new H-1B petition. Whether a particular change in job duties, position, work location, or other employment terms is material depends on the nature of the change.
H-1B petitions are generally approved for periods of up to three years, subject to the petition, LCA, and applicable legal limits. H-1B workers are ordinarily subject to a six-year maximum period of admission, and certain prior time in H or L status may count toward that limit. Time spent outside the United States may sometimes be recaptured, and certain workers pursuing employment-based permanent residence may qualify for extensions beyond the usual six-year limit.
Our article Maintaining Your H-1B Status discusses post-approval issues in greater detail, including employment changes, worksites, travel records, and maintaining lawful H-1B status.
H-1B as Part of Longer-Term Immigration Planning
A spouse and unmarried children under age 21 may generally accompany or follow an H-1B worker in H-4 status. H-4 dependents may study in the United States. Employment authorization is more limited: certain H-4 spouses may qualify to apply for employment authorization when the H-1B principal satisfies specified permanent-residence-related requirements.
H-1B is a temporary nonimmigrant classification, but it can also fit into longer-term permanent-residence planning. Unlike many nonimmigrant categories, the H-1B framework allows a worker to pursue permanent residence without that effort, by itself, preventing the worker from maintaining H-1B classification.
Depending on the employer, position, employee's qualifications, and immigration goals, permanent-residence planning may involve PERM labor certification followed by an I-140 immigrant petition, or another employment-based immigrant category for which the individual may qualify.
Employers who expect to retain an H-1B worker over the longer term may benefit from considering permanent-residence planning before the worker approaches the normal H-1B time limits. Our articles PERM Labor Certification: What Employers and Foreign Workers Should Know and Permanent Residence (Green Card) and Ending H-1B Employment provide additional information about those stages.
H-1B Representation at Lau Immigration Law
H-1B sponsorship requires coordination between the employer's job opportunity, the foreign professional's qualifications, the Labor Condition Application, and the applicable USCIS filing requirements. Cap rules, previous H-1B history, changes in employment, and longer-term immigration plans may also affect the appropriate strategy.
Lau Immigration Law assists employers and employees with employment-based immigration matters, including H-1B specialty occupation employment visas. If you are considering H-1B sponsorship or have questions about whether a position, candidate, or employment arrangement may qualify, we recommend that you consult with legal counsel regarding the specific facts and circumstances.
Immigration law is an ever-changing area of law; thus, we highly recommend you to work with a legal counsel for the most up-to-date and detailed information. It will save you valuable time and frustration in the process. We are looking forward to working with you in meeting your immigration needs. Contact us.
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