H-1B Classification

August 12, 2013

Divisions of H-1B Classification

H-1B: Specialty occupation workers; H-1B2: Department of Defense (DOD) cooperative

research and development project or co-production project workers; and

H-1B3: Fashion models of distinguished merit and ability.

H-1B Petition Process

Petitioner files a Labor Condition Application (LCA) with Department of Labor (DOL) for certification.

• The LCA contains several attestations by the petitioner, including:

• The nonimmigrant will be paid the prevailing wage or the actual wage, whichever is higher, and pay for non-productive time. The nonimmigrant will be offered benefits on the same basis as offered to U.S. workers.

• The petitioner will provide working conditions for nonimmigrants which will not adversely affect the working conditions of workers similarly employed.

• There is no strike, lockout, or work stoppage in the named occupation at the place of employment.

• Notice to union or other workers has been and will be provided in the named occupation at the place of employment.

H-1B Petition Process, cont.

Once DOL certifies the LCA, the petitioner submits Form I-129 with a certified LCA and other supporting documentation to the USCIS Service Center with jurisdiction over the petition.

An adjudicating officer then reviews the petition for eligibility.

•If USCIS approves the petition for a beneficiary who is outside the United States and requires a visa to enter the United States, the beneficiary will need to schedule a visa interview at a U.S. Embassy or Consulate abroad.

•If the beneficiary is in the United States, the petitioner may include a request to change the beneficiary’s status to H-1B or extend H-1B beneficiary’s stay on the Form I-129.

• The beneficiary must be maintaining his/her prior status to be eligible.

General Filing Requirements

• The petition may be filed up to six months before the anticipated start date of the employment as stated on the petition.

• The petition must be filed at the Service Center with jurisdiction over the place of employment.• California Service Center has sole jurisdiction over cap

exempt petitions.

• Each petition may be approved for a period of up to three years but may be limited by several factors, such as licensure or the LCA.

• Generally, a beneficiary's total time in the U.S. under H-1B status may not exceed six years.

H-1B Classification Criteria

• Position qualifies as a specialty occupation;

• Beneficiary is qualified to perform the specialty occupation position, including any state licensure requirement; and

• Petitioner is a U.S. employer or U.S. agent.

Note: This information only focuses on H-1B specialty occupation workers. Models and DOD workers have different eligibility requirements.

Specialty Occupation

INA 214(i)(l) defines the term "specialty occupation" as an occupation that requires:

theoretical and practical application of a body of highly specialized knowledge, and

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.

Specialty Occupation

To qualify as a specialty occupation, the position must meet one of the following criteria found at 8 C.F.R. § 214.2(h)(4)(iii)(A):

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

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;

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

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.

Beneficiary Qualifications

The petitioner must show that the beneficiary meets one of the following criteria found at 8 C.F.R. § 214.2(h)(4)(iii)(C) :

1)The beneficiary holds a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;

•The beneficiary holds a foreign degree determined to be equivalent to a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;•The beneficiary holds an unrestricted state license, registration or certification which authorizes him or her to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or•The beneficiary has education, specialized training, and/or progressively responsible experience that is equivalent to completion of a United States baccalaureate or higher degree in the specialty occupation, and has recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

Licensing Requirements

8 C.F.R. § 214.2(h)(4)(v)

(A) General. If an occupation requires a state or local license for an individual to fully perform the duties of the occupation, an alien seeking H classification in that occupation must have that license prior to approval of the petition to be found qualified to enter the United States and immediately engage in employment in the occupation.

(B) Temporary licensure. If a temporary license is available and the alien is allowed to perform the duties of the occupation without a permanent license, the director shall examine the nature of the duties, the level at which the duties are performed, the degree of supervision received, and any limitations placed on the alien. If an analysis of the facts demonstrates that the alien under supervision is authorized to fully perform the duties of the occupation, H classification may be granted.

Licensing Requirements, cont.

8 C.F.R. § 214.2(h)(4)(v)(C)

• Duties without licensure. In certain occupations which generally require licensure, a state may allow an individual to fully practice the occupation under the supervision of licensed senior or supervisory personnel in that occupation. In such cases, the director shall examine the nature of the duties and the level at which they are performed. If the facts demonstrate that the alien under supervision could fully perform the duties of the occupation, H classification may be granted.

Licensure and Validity Dates

8 C.F.R. § 214.2(h)(4)(v)(E) Limitation on approval of petition.

•Where licensure is required in any occupation… the H petition may only be approved for a period of one year or for the period that the temporary license is valid, whichever is longer, unless the alien already has a permanent license to practice the occupation. An alien who is accorded H classification in an occupation which requires licensure may not be granted an extension of stay or accorded a new H classification after the one year unless he or she has obtained a permanent license in the state of intended employment or continues to hold a temporary license valid in the same state for the period of the requested extension.

Licensing RequirementsAdministrative Limitations to Obtaining Licensure

USCIS has addressed the administrative limitations to obtaining licensure in

2008 and 2009.

March 21, 2008 Donald Neufeld AFM Update titled Adjudicator’s Field Manual

Update: Chapter 31: Accepting and Adjudicating H-1B Petitions When a

Required License is not Available Due to State Licensing Requirements

Mandating Possession of a Valid Immigrant Document as Evidence of

Employment Authorization.

May 20, 2009 Barbara Q. Velarde Memo titled Requirements for H-1B

Beneficiaries Seeking to Practice in a Health Care Occupation.

Licensing RequirementsAdministrative Limitations to Obtaining Licensure

Pursuant to the 2008 AFM update and the 2009 memo, if the beneficiary does not have a permanent or temporary license, the petition may be granted a 1year period if the petitioner is able to show that the beneficiary is eligible for a permanent license except for administrative reasons, e.g. need Social Security # to receive licensure.

In such cases, the petitioner should provide evidence that the beneficiary:

• Has filed an application for a license in accordance with state or local rules and procedures; and

• Cannot obtain a full unrestricted license in the state in which he/she will practice due to the requirement for possession of a social security card, valid immigration document, and/or physical presence in the United States in the form of a letter from the State Board.

PhysiciansDocuments required for the H-1B petitions for physicians:

U. S. medical graduates:• License required by the state of intended employment or

proof of exemption under state law

Foreign medical graduates:• License required by the state of intended employment or

proof of exemption under state law, • Full and unrestricted license to practice in a foreign state

or is a graduate from a foreign medical school, and• Passage of the Federation Licensing Examination,

currently USMLE steps 1, 2, & 3, unless the beneficiary is of national or international renown in the field of medicine. Although FLEX and NBME have been phased out, foreign medical graduates may also document passage of parts 1 and 2 of FLEX or parts I, II, and III of the NBME.

Physicians – Foreign Medical Graduates

•  A J-1 exchange visitor who acquired J-1 status in order to receive graduate medical education or training (a J-1 medical doctor) is generally ineligible to apply for H or L nonimmigrant status or immigrant status.

• To be eligible to do so, the J-1 medical doctor must have resided and been physically present in his or her country of nationality or last residence for at least 2 years (the 2-year foreign residence requirement) upon completion of the J-1 exchange visitor program.  Any spouse or child admitted as an accompanying J-2 status holder is also subject to the 2-year foreign residence requirement.

• However, the Conrad 30 Waiver program allows J-1 medical doctors to apply for a waiver for the 2-year residence requirement so long as the medical doctor fulfills certain requirements.

NOTE: Unlike other J-1 exchange visitors, J-1 medical doctors may only use the Conrad 30 Waiver to waive the foreign residency requirement and change nonimmigrant status to H-1B. He or she may not use any other type of waiver or change to any other nonimmigrant status.

Physicians – Foreign Medical Graduates, cont.

In order to be eligible for the Conrad 30 Waiver, the J-1 medical doctor must:

• Agree to be employed full-time in H-1B status at a health care facility located in an area designated by U.S. Department of Health and Human Services (HHS) as a Health Professional Shortage Area (HPSA), Medically Underserved Area (MUA), or Medically Underserved Population (MUP) for 3 years. 

• Obtain a contract from the health care facility located in an area designated by HHS as a HPSA, MUA, or MUP.

• Obtain a “no objection” letter from his or her home country if the home government funded his or her exchange program.

• Agree to begin employment at the health care facility within 90 days of receipt of the waiver.

Physicians –Foreign Medical Graduates, cont.

Once the waiver is obtained:• The health care facility must submit a Form I-129, Petition for a

Nonimmigrant Worker, along with the Department of State Waiver Review Division (DOS-WRD) favorable recommendation letter, in order to request a change of the J-1 medical doctor’s nonimmigrant status to H-1B.

• The J-1 medical doctor must practice medicine for at least three years in an area designated by HHS as a HPSA, MUA, or MUP.

• The spouse and/or child of the waiver recipient must submit Form I-539, Application to Extend/Change Nonimmigrant Status, in order to change status from J-2 to H-4 nonimmigrant status. He or she may not change to any other nonimmigrant status or acquire permanent residence until the principal fulfills the three-year commitment.

Numerical Limitations

• The total number of temporary workers who may be issued initial visas or otherwise provided nonimmigrant status for H-1B classification in a fiscal year is currently 65,000. This is known as the “cap.”

• Additionally, the first 20,000 petitions filed on behalf of a beneficiary with a U.S. master’s degree or higher are exempt from the cap. This is also known as the advanced degree exemption or “master’s cap.”

Numerical Limitation Exceptions Petitioners Not Subject to the Cap

• Institutions of higher education, as defined in the Higher Education Act of 1965, section 101(a)

• Nonprofit entities that are related to or affiliated with an institution of higher education

• Nonprofit research organizations or governmental research organizations

Institutions of Higher EducationSection 101(a) of the Higher Education Act of 1965, (Pub. Law 89-329), 20 U.S.C. section 1001(a), defines institution of higher education as:

(1) admits as regular students only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate;

(2) is legally authorized within such State to provide a program of education beyond secondary education;

(3) provides an educational program for which the institution awards a bachelor's degree or provides not less than a 2-year program that is acceptable for full credit toward such a degree;

(4) is a public or other nonprofit institution; and(5) is accredited by a nationally recognized accrediting agency or association,

or if not so accredited, is an institution that has been granted preaccreditation status by such an agency or association that has been recognized by the Secretary for the granting of preaccreditation status, and the Secretary has determined that there is satisfactory assurance that the institution will meet the accreditation standards of such an agency or association within a reasonable time.

Related or Affiliated Nonprofit Entities

To qualify as an affiliated or related nonprofit entity under 8 C.F.R. § 214.2 (h)(19)(iii)(B) the entity must be connected or associated with an institution of higher education through:

• shared ownership or control by the same board or federation;

• operated by an institution of higher education; or

• attached to an institution of higher education as a member, branch, cooperative, or subsidiary.

Related or Affiliated Nonprofit Entities, cont.

Since USCIS is currently reviewing its policy on H-1B cap exemptions for nonprofit entities that are related to or affiliated with an institution of higher education, USCIS HQ instituted an interim procedure to provide consistency in adjudications until new guidance is issued.

Interim guidance dated April 28, 2011 gives deference to prior H-1B cap exemption determinations for nonprofit entities made since June 6, 2006.

Related or Affiliated Nonprofit Entities, cont.

To establish receipt of a prior determination of H-1B cap exemption based on affiliation, the petitioner may provide some or all of the following documentation or similar types of evidence:

• A copy of the previously approved cap-exempt petition (relevant pages of the Form I-129 and pertinent supplements) filed by the petitioner;

• A copy of the corresponding Form I-797 approval notice (issued after June 6, 2006) for the affiliation-based cap exempt petition;

• Documentation previously submitted with a petition in support of the claimed cap exemption; and/or

• A statement attesting that the petitioner was determined to be cap-exempt since June 6, 2006 as a nonprofit entity related to or affiliated with an institution of higher education.

Policy Memorandum on Additional Guidance to the Field on Giving Deference to Prior Determinations of H-1B Cap Exemption Based on Affiliation (April 28, 2011)

Research Organizations

A nonprofit research organization:

• is primarily engaged in basic research and/or applied research

A governmental research organization:

• is a United States Government entity whose primary mission is the performance or promotion of basic research or applied research.

Numerical Limitation ExceptionsBeneficiary Employed “at” a Cap-Exempt Employer

In addition to the exemptions noted previously, even if the petitioner is not a cap exempt institution, an alien is exempt from the H-1B cap if the alien is employed (or has received an offer of employment) “at” an institution of higher education, a related or affiliated nonprofit entity, a nonprofit research organization, or a governmental research organization

*referred to as a “qualifying institution”

H-1B Filing Tips

H-1B Filing Tips

1. Enter the petitioning entity’s name, address, and phone number in Part 1 of the Form I-129, Petition for Nonimmigrant Worker. Do not enter an attorney’s or agent’s address or phone number in Part 1 of the petition.

• If you would like an attorney to be notified of any action on your case, you may file Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative.

H-1B Filing Tips, cont.

2. You must sign the petition, the Labor Condition Application (LCA), and both signature sections of the H Classification Supplement.

H-1B Filing Tips, cont.

3. There must be a close correlation between the proposed duties and the beneficiary’s education.

4. The beneficiary’s transcripts should be provided along with the diploma.

5. If you provide an evaluation of the beneficiary’s education, training, and/or experience, provide copies of the work experience letters, training certificates, transcripts, or other documentation that the evaluator used to make his or her determination.

H-1B Filing Tips, cont.

6. The accompanying LCA must:

• be filed/certified prior to filing the petition,

• cover the requested employment dates,

• use the correct standard occupational classification (SOC) that reflects the proffered duties listed on the petition,

• provide all work locations if they are outside of the Metropolitan Statistical Area (MSA) of the main location and the employment is long term (more than 30 days) at each location, and

• include a list of workers who have used/ will use the LCA if the LCA was filed for multiple beneficiaries.

Common Causes for RFEs

The most common causes for requests for evidence (RFEs) in academia are:

• Evidence of maintenance of status, such as pay stubs.

• Evidence pertaining to extensions under AC21, such as copies of Labor Certification, I-140, and/or evidence that the Labor Certification is currently pending.

• In certain cases, evidence that the position qualifies as a specialty occupation.

Preparation

The following are some suggested ways to improve preparation and submission of H-1B petitions:

• Please make sure that the beneficiary’s name is spelled correctly as listed on his or her passport. If the beneficiary has any name variations, provide those using the following format: LAST, First.

• Make sure to submit a second copy of the Form I-129 and supporting documentation to avoid visa processing delays abroad.

• Make sure to submit a letter of support detailing the beneficiary’s job duties.

Preparation, cont.

• If requesting recapture time, please list the beneficiary’s arrival and departure dates and provide evidence to demonstrate eligibility for recapture time, such as copies of passport stamps, airline tickets, and/or flight itineraries.

• If requesting additional time under sections 104 or 106 of the American Competitiveness in the Twenty-First Century Act (AC21), make sure to include a copy of the Permanent Labor Certification (or up-to-date evidence that the permanent Labor Certification is pending with the DOL) or the Form I-140.  If either was denied, please provide evidence of a timely filed appeal.

• Include evidence that the beneficiary was maintaining a valid status at the time of filing if requesting a change of status or extension of stay.

Submitted Questions

1. (Processing time) Could you please give us an update on the H-1B normal processing time? The California Service Center (CSC) processing time, posted on July 19th, 2013, shows 2 months for H-1B COS petitions. Member institutions have reported that H-1B petitions requesting COS have actually been pending since April, and no decisions have been made, suggesting that processing is actually taking about four months.

Submitted Questions

2. (Credential Evaluation) While the regulations [8 C.F.R. § 214.2(h)(4)(iii)(D)] provide USCIS the authority to request a formal evaluation of an H-1B petition beneficiary’s foreign degree, CSC often seems to use its discretion and good judgment and accept simply a translation of the diploma. Can you explain how you determine whether to require a formal credential evaluation?

Submitted Questions

3. If CSC revokes a petition, what databases are updated with this information (e.g., CLAIMS, etc.)?

Submitted Questions

4. Stakeholders report an increase in RFEs with respect to “recognition of expertise” for H-1B equivalency evaluations…The regulation provides five alternative methods for establishing that an individual holds the equivalent of a U.S. baccalaureate degree in the specialty…In several RFEs, CSC is limiting acceptable evidence of “recognition of expertise” to option #5 under 8 C.F.R. 214.2(h)(4)(iii)(D)(5), in which a petitioner can request the Service to make the necessary determination of equivalence...However, in the RFEs, it appears that the Service is trying to graft on a (D)(5) “recognition of expertise by two recognized authorities” requirement to the (D)(1) evaluations (professor/college credit evaluation). Please remind examiners that the “recognition of expertise” test is only required if equivalency to a degree is based on 8 CFR 214.2(h)(4)(iii)(D)(5), and that a petitioner is not required to show “recognition of [the beneficiary’s] expertise” when equivalency is claimed on one of the other grounds in 8 CFR 214.2(h)(4)(iii)(D).

Submitted Questions

5. For petitioners seeking H-1B cap exemption based on an affiliation with a college or university, at what stage is the determination of cap exemption made? Is it at the mailroom, or are there circumstances where the petition can be receipted and the issue of cap-exemption can be made by an adjudicator? More generally, what system does CSC use to evaluate claims of cap exemption?