H-1B Visas

H-1B Visas. INA §101(a)(15)(H)(i)(b), 8 U.S.C. §1101(a)(15)(H)(i)(b). Legislative History, H.R. Rep. No. 851, 91st Cong. 2d Sess., 1970 U.S. Code Cong. and Admin. News 2750-55 (1970). See also Immigration Act of 1990, H.R. Conf. Rep. No. 955, 101st Cong. 2d Sess. 125 (1990); Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L. 102-232 (Dec. 12, 1991); 59 Fed. Reg. 41818-42 (Aug. 15, 1994).

1. Criteria—INA §101(a)(15)(H)(i)(b), 8 U.S.C. §1101(a)(15)(H)(i)(b); 8 C.F.R. §214.2(h); 22 C.F.R. §41.53:

a. Person in a specialty occupation, fashion model of distinguished merit and ability, or person providing service related to Department of Defense (DOD) cooperative research and development project or co-production project.
b. Coming temporarily to U.S. «Matter of Ord, 18 I&N Dec. 285 (R.C. 1982)».
c. Approval of labor certification or the filing of visa petition does not preclude granting an H-1B petition or extension. INA §214(h), 8 U.S.C. §1184(h). Alien may legitimately have “dual intent.” Memo, Gibson, Acting Assoc. Comm., CO {} 214h-P, 214L-P (Sept. 23, 1985), reprinted in 62 Interpreter Releases 965-67 (Oct. 4, 1985); 8 C.F.R. §214.2(h)(16)(i).
d. Does not require maintenance of a foreign residence. I.A.90 §205(e); IFM §15.4; 9 FAM §41.53 N3.1. In light of the elimination of the foreign residence requirement, Dept. of State’s position is that “the intent of the H-1 applicant in regard to nonimmigrant or immigrant status is totally irrelevant. Thus, not only shall the consular offices not refuse an H-1 visa on this basis, facts relating to foreign residence and nonimmigrant intent shall not be considered by the officer when adjudicating the H-1 visa application.” Cable, DOS, 91-State-171115, ¶6 (May 24, 1991), reprinted in 68 No. 21 Interpreter Releases 681-84 (June 3, 1991).
e. Self-Petitioning/Owner as Petitioner. Although an owner of a petitioning employer may be barred from obtaining a labor certification, non-precedent AAO decisions support the right of a corporation to petition for its owner for an H-1B if the owner is H-1B qualified. «Matter of X, ___, SRC 98 101 50785 (AAO Aug. 9, 1999)», 21 Immig. Rept. B2-6 [Following Matter of Aphrodite Investments, Ltd., a sole owner and sole employee of the petitioning company is not precluded from receiving an H-1B].
f. Labor Condition Application (LCA) requirement. INA §212(n)(1), 8 U.S.C. §1182(n)(1). Applies to all H-1Bs including fashion models, 8 C.F.R. §214.2(h)(1)(ii)(B)(3), and physicians. The petitioner is required to obtain a certification from DOL that it has filed an LCA in the occupational specialty. 8 C.F.R. §214.2(h)(4)(i)(B)(1). Memo, Weinig, Asst. Comm., Adjudications, CO 214h-P (Mar. 5, 1992), reprinted in 69 No. 12 Interpreter Releases 378, 390 (Mar. 30, 1992). For FY 1999-2003 there were special attestation requirements for employers who previously committed willful violations of the law or for employers who are deemed to be H-1B dependent. 20 C.F.R. §655.700 et seq. DOD category does not require an LCA.
g. Payment by Employer. If employer dismisses employee must pay reasonable costs of transportation home. INA §214(c)(5)(A), 8 U.S.C. §1184(c)(5)(A); 8 C.F.R. §214.2(h)(4)(iii)(E). The enforcement of this provision is regarded as a private contractual matter. Letter, Simmons, Branch Chief, Business and Trade Service (HQ 70/6.2.8) (May 20, 1999) reprinted in 76 No. 28 Interpreter Releases 1125, 1140 (July 26, 1999). Employer must begin paying employee-stated wage within 30 days of entry or 60 days from C/S application if in the U.S. INA §212(n)(2)(C)(vii)(III). Nor may the employer “bench” a full time or part time H-1B due to lack of work. INA §212(n)(2)(C)(vii)(I) and (II). An employer may give a prospective employee monetary or non-monetary (stock option) signing bonus. Letter, Hernandez, Acting Branch Chief, Business and Trade Services HQ 70/6.2.8 (May 3, 2000). Employee entitled to leave under the Family Medical Lave Act to the same extent as other employees without being out-of-status See AILA InfoNet at Doc. No. 00091503 (Sept. 15, 2000) [Report of teleconference call with Immigration Service Division of INS].
h. Cap of 65,000 H-1B visas per year less the Free Trade Visas for Chile and Singapore Resulting in 58,200 H-1B Visas. INA §214(g)(1)(A), 8 U.S.C. §1184(g)(1)(A); Pub. L. 108-77 and 108-78. Only “new employment” is covered under the cap. CIS can no longer count against the cap any person who has already been counted within the past six years unless the H-1B applicant would be eligible for a new full six years of authorized H-1B admission at the time the new petition is filed. An H-1B could be eligible for a full 6 years if s/he was out of the country for a year or if the work s/he was performing in the U.S. was sea- {} sonal, intermittent or less than 6 months per year. Other categories that cannot be counted in the cap include: (1) J-1 who has obtained waiver through the State 30 program; (2) Beneficiaries of employment offers at institutions of higher education or related or affiliated nonprofit entities, or non-profit research organizations, or governmental research organizations. INA §214(g)(5)(A) & (B), Memo, Cronin, Acting Ex. Assoc. Comm. Programs, HQPGM 70/6.2.8 (June 19, 2001), reprinted in 78 No. 25 Interpreter Releases 1069, 1108-17 (July 2, 2001); (3) A person who has already be counted against the cap and applies for another H-1B with another employer under portability provisions is not considered to be applying for new employment and is not subject to the cap. 65 Fed. Reg. 15178-80 (Mar. 21, 2000); (4) Spouse and children of H-1B; and (5) Extensions of H-1B status. Approved petitions later found to be issued by fraud or a material misrepresentation are deducted from the numerical cap irrespective of the fiscal year the fraud was discovered. INA §214(g)(3). However, if a petition is subsequently revoked for any reason other than a material misrepresentation/fraud it will only be deducted if it is revoked in the year it was approved. 69 Fed. Reg. 8675-76 (Feb. 25, 2004). The U.S. has entered into Fast Track Trade legislation with Chile and Singapore. At present, Chile receives a maximum of 1,400 H-1Bs and Singapore a maximum of 5,400 H-1Bs. To the degree these are used they are reduced from the overall H-1B cap, thus reducing the overall cap for all others to 58,200. If they are not used, they are made available between Oct1st and Nov. 15th of the next fiscal year. 69 Fed. Reg. 8675-76 (Feb. 25, 2004); Memo, Yates, Assoc. Dir. Operations, USCIS (Jan. 8, 2004), posted on AILA InfoNet at Doc. No. 04030361 (Mar. 3, 2004). The numerical cap is filed in the order that petitions are filled. Once the cap is reached the following issues may arise:
(1) Persons awaiting visa availability
DOS has agreed to allow foreign medical graduates who require an extension beyond the period of actual training or education to take their exams to be given an extension until the cap has been lifted. This only pertains to persons who have received a §212(e) waiver, who are not unlawfully employed and who are sitting for specialty Boards. The extension is limited until the end of the month in which the Board examination is given but not to exceed six months. 64 Fed. Reg. 34982-83 (June 30, 1999) reprinted in 76 No 26 Interpreter Releases 1053, 1074 (July 12, 1999).
(2) Change of Status and H-1B Cap Problem. If person applies for C/S and the H-1B cap has been reached s/he will be treated as O/S if s/he falls O/S before the beginning of the next fiscal year on Oct 1st. For example, a person who is in valid B-2 status until June 1 applies for C/S in April. The H-1B cap is reached on May 15th before the applicant gets approved for a June 1 employment date. The applicant will be considered out-of-status beginning June 1 even if the application is approved for an Oct. 1 start date. The H-1B petition will be approved but the C/S will be denied. Memo, Pearson, Ex. Assoc. Comm. (HQ 70/23.1RS-P) (Aug. 19, 1998), reprinted in 75 No. 32 Interpreter Releases 1146, 1165 (Aug. 24, 1998). The H-1B petition that is not adjudicated before the cap is reached will be adjudicated and given a starting date no earlier than Oct. 1 of the following fiscal year, regardless of the date requested on the petition. 8 C.F.R. §214.2(h)(8)(ii)(E). A petition filed after the cap is reached will not be accepted unless it requests a start date of Oct. 1. Id. For F-1 and J-1 beneficiaries (and their dependents) seeking C/S, their D/S (which is normally 60 (F-1) and 30 (J-1) days respectively beyond the completion of studies) may be extended by the Commissioner for the time necessary to complete the adjudication of the H-1B, usually until {} the next fiscal year, so that they are not O/S. 8 C.F.R. §§214.2(f)(5)(vi), (j)(1)(vi). The Commissioner exercised that authority during FY 2000 and determined that an F-1/J-1 waiting to C/S can accept a signing bonus from the prospective employer. 65 Fed. Reg. 15178-80 (Mar. 21, 2000). A J-1 who has obtained a waiver pursuant to the State 30 program is not subject to the H-1B cap. Memo, Cronin, Acting Ex. Assoc. Comm. Program, HQPGM 70/6.2.8 (June 19, 2001) at ¶II B, reprinted in 78 No. 25 Interpreter Releases 1069, 1108-17 (July 2, 2001).
(3) INA §222(g). Where person applies for C/S to H-1B but the C/S is denied because the cap is reached before change can be granted, it would be considered an extraordinary circumstance under INA §222(g) thus permitting the person to go to a third country as long as s/he did not work without authorization. Cable, DOS (99-State-105097) (June 7, 1999) reprinted in 76 No. 24 Interpreter Releases 977-80 (June 28, 1999).
i. Must be permanent position (unlike H-2) which must be temporarily filled.
j. Petitioner must be U.S. employer. 8 C.F.R. §214.2(h)(4)(ii). Employer defined as: (1) engages a person to work within the U.S.; (2) has employer-employee relationship in that it may hire, pay, fire, supervise or otherwise control work; and (3) has an Internal Revenue Service Tax ID Number. Includes partner or sole proprietor. Letter, Bednarz, Chief, INS, NIV Branch, Adjudications, CO 214h-C (July 29, 1993), reprinted in 13 AILA Monthly Mailing 22 (Jan. 1994). U.S. employer must have control of the H-1B but does not necessarily need to be the entity paying her salary. Letter, LaFleur, Chief, Business and Trade Branch, Benefits Division, INS, HQ 70/6.2.8 (July 22, 1996), reprinted in 73 No. 30 Interpreter Releases 1045, 1062-63 (Aug. 5, 1996) [Acknowledged that foreign former employer could continue to pay salary]. At least one court has found that where an employment agency is involved, CIS may treat the employer as the entity where the person will ultimately work. «Defensor v. Meissner, 201 F.3d 384 (5th Cir. 2000)» [Affirmed INS’ denial of H-1Bs to nurses with bachelor degrees because the hospitals where they would work did not require B.N.S. degrees even if the employment agency that hired them did]. Where employer hires a professional employer organization (PEO) to handle its administrative matters in regard to its employees such as payroll and health insurance but the employer still retains control over the day-to-day activities of the H-1B, the employer can petition (and would be responsible) for the H-1B because it would still be considered the U.S. employer as defined under 8 C.F.R. §214.2(h)(4)(ii). Letter, Hernandez, Director, Business and Trade Services, INS, HQ 70/6.2.8 (Dec. 20, 2000) reprinted in 78 No. 27 Interpreter Releases 1171, 1191-94 (July 16, 2001). A PEO could file for an H-1B if it met the definition of a U.S. employer under the regulations and was not simply a record keeper or accountant. Id.
k. Portability. New employment upon filing petition. A person in H-1B status may accept new employment upon the filing of a new petition by the prospective employer if: (1) s/he was lawfully admitted; (2) the new petition is “nonfrivolous”; (3) the new petition was filed before the date of expiration of the period of stay authorized by the AG; and (4) subsequent to such lawful admission the H- 1B beneficiary has not been employed without authorization before the filing of such petition. INA §§214(n)(1) and (n)(2)(A)–(C). Filing is defined at 8 C.F.R. §103.2(a)(7)(i) as physically received by CIS. The Service has determined that a “nonfrivolous” petition is one that “is not without basis in law or fact.” Memo, Pearson, Ex. Assoc. Comm. HQOPS 70/20 (Jan 29, 2001) reprinted in 78 No. 7 Interpreter Releases 365, 381-83 (Feb. 12, 2001). In order to be admitted at the {} border under the portability provisions an applicant must meet the following requirements: (1) S/he must otherwise be admissible; (2) S/he must be in possession of a valid unexpired passport and visa, unless exempt under 8 C.F.R. §§212.1, 1212.1; (3) S/he must establish that she was previously admitted in H- 1B status by presenting the I-94 or I-797; and (4) S/he must present the filing receipt form I-797 for the new H-1B or other evidence of timely filing prior to expiration of previous H-1B. If the H-1B is not in possession of I-797 and a CLAIMS inquiry shows no evidence of the new petition being filed or if the original petition has expired and there is no evidence of the approval of a new one, the person may not be admitted in H-1B status. Memo, Pearson, Ex. Assoc. Comm. HQOPS 70/20 (Jan. 29, 2001), supra. Under DOS guidelines a person may also be readmitted under the H-1B visa obtained through the original employer as long as it has not expired and the other above conditions are met. Cable, DOS 01-State-27960 (Feb. 14, 2001) reprinted in 78 No. 11 Interpreter Releases 529 (Mar. 19, 2001). See also Memo, Cronin, Acting Ex. Assoc. Comm. Program, HQPGM 70/6.2.8 (June 19, 2001) at ¶II D, reprinted in 78 No. 25 Interpreter Releases 1069, 1108-17 (July 2, 2001). An H-1B employee may also return to the original employer after switching to another employer under the portability provision if his original petition is still valid because H-1B “petitions remain valid until they either expire or are revoked...” Letter, Hernandez, Director, Business and Trade Services, HQ 70/6.2.8 (Apr. 24, 2002) reprinted in 79 No. 32 Interpreter Releases 1198-99, 1220-23 (Aug. 12, 2002).
l. Termination. An H-1B who is terminated from his position or is unemployed is not considered to be maintaining lawful status. Letter, Hernandez, Director, Business and Trade Services, HQ 70/6.2.8 (Apr. 24, 2002) reprinted in 79 No. 32 Interpreter Releases 1198-99, 1220-23 (Aug. 12, 2002).
m. Penalty vs. Liquidated Damages. An employer may not impose a penalty on an H-1B employee for leaving his employment. INA §212(n)(2)(C)(vi)(I); 20 C.F.R. §655.731(c)(10)(i)(C). However, an employer may require an employee to sign a liquidated damages clause as long as such clause is valid under state law.
2. Analyses/Definitions:
a. Specialty Occupation is defined under INA §214(i)(1), 8 U.S.C. §1184(i)(1), 8 C.F.R. §214.2(h)(4)(ii), as requiring:
(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 U.S.
b. Standards to Determine Specialty Occupation, 8 C.F.R. §214.2(h)(4)(iii)(A) require that the position must meet one of the following criteria:
(1) A baccalaureate or higher degree or equivalent is normally the minimum requirement for entry into the particular position; «Unical Aviation, Inc. v. INS, 248 F.Supp.2d 931 (C.D. Cal. 2002)» [Reversed AAO because position of senior market analyst was indistinguishable from a marketing research analyst which INS acknowledged was a specialty occupation and company demonstrated in normally requires a baccalaureate degree]; «Tapis Intern v. INS, 94 F.Supp.2d 172 (D. Mass. 2000)» [Reversed AAO because it denied H-1B on grounds that job did not require bachelor’s degree while ignoring that regulation permit equivalency]; {}
(2) Degree requirement is common in industry in parallel positions among similar organizations or alternatively that the particular position is so complex or unique that a degree is required;
(3) Employer normally requires a degree or equivalent; or
(4) Nature of specific duties so specialized and complex that knowledge required to perform the duties is usually associated with attainment of degree.
c. Criteria In Evaluating the Position Include Under «Matter of Michael Hertz Assoc., 19 I&N Dec. 558 (Comm. 1988)»:
(1) Focus on tasks, demands, duties and actual requirements of position as specified both by petitioner and industry documents;
(2) Position requires knowledge, both theoretical and applied, which is almost exclusively obtained through studies and institution of higher learning;
(3) Position requires a precise and specific course of study which relates directly and closely to the position;
(4) Obtaining a college degree in business or liberal arts, without further specification, does not establish eligibility. Requirement of college degree for sake of general education or to obtain higher calibre employee insufficient;
(5) Other factors considered: Form, method, extent of compensation (e.g., if percent of net income suggests a permanent job); Form of agreement/contract (must have termination date).
d. Cases referring to Members of the Professions Relevant to Definition of Specialty Occupation—«Matter of Essex Cryogenics Industries, Inc., 14 I&N Dec. 196 (Comm. 1972)»; «Matter of General Atomic Co., 17 I&N Dec. 532 (Comm. 1980)»; INA §101(a)(32), 8 U.S.C. §1101(a)(32).
e. Specialty occupation encompasses the definition of professional. “Professional” has been previously defined to include:
(1) Accountant. «Matter of Arjani, 12 I&N Dec. 649 (R.C. 1967)»; «Matter of Doultsinos, 12 I&N Dec. 153 (DD 1957)».
(2) Acupuncturist. «Cutler v. Ilchert, ___ F.Supp. ___ (N.D. Cal. 1985)» [Without degree]. But see «Matter of ___, WAC 94-064-50122 (AAU Sept. 9, 1994)», posted on AILA InfoNet at Doc. No. 95020190 (Feb. 1, 1995).
(3) Chef. «Matter of ___, WAC 02-136-52595 (AAO Dec. 13, 2002)» [Executive pastry chef where job required a BA degree and level of complexity and supervisory responsibility was more than food service manager as described in OOH].
(4) Chiropractor. «Matter of McGowan, 11 I&N Dec. 898 (DD 1966)».
(5) Computer Programmer. «Matter of Precision Programming, Inc., EAC 9220251006 (AAU Apr. 22, 1993)» [Programmer for business may be specialty occupation], reported in 70 No. 21 Interpreter Releases 702-04 (May 27, 1993). Memo, Way, NSC Director, NSC 70/44.4 (Dec. 22, 2000) reprinted in 78 No. 16 Interpreter Releases 714, 725-26 (Apr. 23, 2001) [Regarding position of programmer as generally considered a specialty occupation especially if the position “involves providing clients with pro- {} gramming analysis, custom designs, modifications, and/or problem solving of software.”].
(6) Dietician. «Matter of DeVera, 13 I&N Dec. 340 (DD 1966)»; «Matter of Roldan, 11 I&N Dec. 869 (DD 1966)».
(7) Electronics specialist. «Matter of Sea, Inc., 19 I&N Dec. 817 (Comm. 1988)».
(8) Fashion designer. «Mindseye v. Ilchert, ___ F.Supp. ___ (N.D. Cal. 1987)»; 65 No. 3 Interpreter Releases 58, 60 (Jan. 15, 1988).
(9) General Manager (but only where business is complex). «Arctic Catering, Inc. v. Thornburgh, 769 F.Supp. 1167 (D. Colo. 1991)». But see «Shanti, Inc. v. Reno, 36 F.Supp.2d 1151, 1164-66 (D. Minn. 1999)» [General manager and restaurant manager positions not specialty occupations per se].
(10) Graphic Designer. «Young China Daily v. Chappell, 742 F.Supp. 552 (N.D. Cal. 1989)».
(11) Hotel management. «Matter of Sun, 12 I&N Dec. 535 (DD 1966)».
(12) Industrial designer (with B.A.). «Matter of Michael Hertz Assoc., 19 I&N Dec. 558 (BIA 1988)» [Reversed «Matter of Huckenbeck, 13 I&N Dec. 118 (R.C. 1969)»].
(13) Interior designers (commercial). «Matter of ___, WAC89 (AAU Nov. 30, 1989)», reported in 67 No. 3 Interpreter Releases 61-62 (Jan. 12, 1990).
(14) Investment Analyst. «Matter of Tight Knot, Inc., LIN 99 089 51751 (AAO June 20, 2000)» reported in 77 No. 34 Intepreter Releases 1291, 1292-93 (Sept.1, 2000).
(15) Journalist. «Matter of Perez, 12 I&N Dec. 701 (DD 1968)».
(16) Librarian. «Matter of Yaakov, 13 I&N Dec. 203 (R.C. 1969)».
(17) Marketing Research Analyst/Senior Market Analyst, «Unical Aviation, Inc. v. INS, 248 F.Supp.2d 931 (C.D. Cal. 2002)».
(18) Medical records librarian. «Matter of Villanueva, 13 I&N Dec. 733 (DAC 1977)».
(19) Medical Technologist. «Matter of Panganiban, 13 I&N Dec. 581 (DAC 1970)».
(20) Minister. «Matter of Wu, 11 I&N Dec. 697 (DD 1966)».
(21) Orthopedist. «Children’s Medical Center of Dallas v. INS, ___ F.Supp. ___, Case No. 3-87-2330-T (N.D. Tex. 1988)».
(22) Pharmacist. «Matter of Rabbani, 12 I&N Dec. 15 (DD 1966)».
(23) Showroom Manager. «Tapis Intern v. INS, 94 F.Supp.2d 172 (D. Mass. 2000)» [Reversed AAO because it denied H-1B on grounds that job did not require bachelor’s degree while ignoring that regulation permitted equivalency]
(24) Social Worker. «Matter of Reyes, 13 I&N Dec. 406 (R.C. 1969)».
(25) Software Design Engineer, «Matter of Shanmukam/Matter of Aditi Corp., LIN 99 243 50365 (AAO May 23, 2000)», reported in 77 No. 25 Interpreter Releases 861-63 (June 30, 2000); {}
(26) Technical Publications Writer. «Matter of Desai, 17 I&N Dec. 569 (R.C. 1980)».
(27) Vocational Counselor. «Matter of Wu, 12 I&N Dec. 459 (DD 1967)».
(28) Webographer, «Matter of Image Plant___, EAC 00 247 50368 (AAO Feb. 15, 2002)» reprinted in 79 No. 12 Interpreter Releases 406, 415-18 (Mar. 18, 2002) [Treated webographer as graphic designer]
f. Position will be considered professional position if listed in INA §101(a)(32); 8 U.S.C. §1101(a)(32). «Turbomotive, Inc. v. Weiss, ___ F.Supp. ___, Case No. H- 88-563 (JAC) (D. Conn. July 27, 1989)»; 66 No. 30 Interpreter Releases 879 (Aug. 7, 1989) [Mechanical engineer position not requiring a B.S. or B.A. still professional position because engineer is listed in the statute as a professional position]. The Service views position as professional where “it requires theoretical and practical application of a body of highly specialized knowledge ...” 8 C.F.R. §214.2(h)(4)(ii); «Shanti, Inc. v. Reno, 36 F.Supp.2d 1151, 1164-66 (D. Minn. 1999)» [Restaurant manager position not specialty occupation]; «All Aboard Worldwide Couriers v. Attorney General, 8 F.Supp.2d 379 (S.D.N.Y. 1998)» [Upheld denial of public affairs consultant position in shipping industry because applicant failed to prove degree requirement in this specific industry even if public affairs consultants are professionals in other industries]; «Matter of Caron International Inc., 19 I&N Dec. 791 (Comm. 1988)» [General manager occupations such as vice-president or first line supervisor not necessarily a professional position]; «Matter of Ling, 13 I&N Dec. 35 (R.C. 1968)». The position, under INS’ view, qualifies as a specialty occupation if it always or nearly always requires a B.A. degree or higher rather than “usually” requires a degree. «Louisiana Philharmonic Orchestra v. INS, __F. Supp. 2d___, 2000 W.L. 282785 (E.D. La. Mar. 15, 2000)». Generally, look to industry standards. «Matter of Michael Hertz Assoc., Inc., 19 I&N Dec. 558 (Comm. 1988)». But see «Safer, Inc. v. INS, ___ F.Supp. ___, CA 3-87-2761-R (N.D. Tex. 1989)»; 66 No. 11 Interpreter Releases 328-29 (Mar. 20, 1989). But it is also a professional position where the employer or the job require a degree or its equivalent and thus some combination of education and experience may be sufficient. «Tapis Intern v. INS, 94 F.Supp.2d 172 (D. Mass. 2000)» [Reversed AAO because it denied H-1B on grounds that job did not require bachelor’s degree while ignoring that the regulation also permitted equivalency]. An exception to the “industry standard” requirement would permit a finding that a position is professional where it is a “transitional occupation.” «Hird/Blaker Corp. v. Sava, 764 F.Supp. 872 (S.D.N.Y. 1991)». One court has looked to the definition of professional contained in the FLSA. 29 C.F.R. §541. «Full Gospel Portland Church v. Thornburgh, 730 F.Supp. 441, 446-47 (D.D.C. 1988)». “[T]he vocations included in the term `professional’ in our modern highly industrialized society are constantly expanding.” «Matter of Shin, 11 I&N Dec. 686 (DD 1966)». Whether position is professional is unrelated to size of company, salary or prior company history of maintaining position. «Young China Daily v. Chappell, 742 F.Supp. 552 (N.D. Cal. 1989)»; [Graphics designer position is professional job]. Position can be considered professional based on “the complexity of the duties alone.” «American Bictech, Inc. v. INS, ___ F.Supp. ___ Civ-2-88-262 (E.D. Tenn. Mar. 27, 1989)», reported in 66 No. 23 Interpreter Releases 653-55 (June 19, 1989) [President of injection molded plastic company is professional position]; «Arctic Catering, Inc. v. Thornburgh, 769 F.Supp. 1167 (D. Colo. 1991)» [General manager of business catering to needs of workers at geophysical drilling and mining camps in remote regions of the world]. Moreover, INS should give deference to the employer’s view, should consider fully the employer’s evidence and should not rely simply on “standardized government classification sys- {} tems, [Occupational Outlook Handbook].” «Unico American Corp. v. Watson, ___ F.Supp. ___, Case No. CV 89-6958 (C.D. Cal. Mar. 19, 1991)», reported in 68 No. 34 Interpreter Releases 1161 (Sept. 9, 1991).
g. Where position is considered specialty occupation does person have credentials? 8 C.F.R. §214.2(h)(4)(iii)(C).
(1) Employee requirements needed for specialty occupation under INA §214(i)(2), 8 U.S.C. §1184(i)(2) are:
(a) Full state licensure to practice in the occupation, if such licensure is required to practice in the occupation;
(b) Completion of the degree required for the occupation; or
(c) Experience in the specialty equivalent to the completion of such degree; and
(d) Recognition of expertise in the specialty through progressively responsible positions relating to the specialty.
Degree or its equivalent is sufficient if it is a requirement for the job. 8 C.F.R. §214.2(h)(4)(iii)(C)(2); «Matter of Shin, 11 I&N Dec. 686 (DD 1966)».
Where employee has mixture of education and experience, it may be sufficient where applicant has at least some formal college level training and the training and education are the equivalent of the degree. 8 C.F.R. §214.2(h)(4)(iii)(C)(4); «Matter of Sea, Inc., 19 I&N Dec. 817 (Comm. 1988)»; «Matter of Yaakov, 13 I&N Dec. 203 (R.C. 1969)».
But a general degree, such as a B.A. in business administration or its equivalent, absent specialized experience may be insufficient because there must be a showing of a degree in a specialized field. «Shanti, Inc. v. Reno, 36 F.Supp.2d 1151, 1162-66 (D. Minn. 1999)» [Distinguished Matter of Sun because applicant only had equivalent general degree in business and not hotel management degree].
(2) Experience Alone May Be Sufficient. 8 C.F.R. §214.2(h)(4)(iii)(C)(4) (“education, specialized training, and/or progressively responsible experience that is equivalent to BA”). See «Matter of Minnesota Mining and Manufacturing Co. (3M), Case No. A27 228 517 (AAU Oct. 24, 1989)», reported in 66 No. 48 Interpreter Releases 1411-12 (Dec. 18, 1989) [22 years experience in document systems manager position]. But see «Matter of Portugues Do Atlantico Information Bureau, Inc., 19 I&N Dec. 194 (Comm. 1984)». Where experience is substituted for education it must include the theoretical and practical application of specialized knowledge required at the professional level. Not any on-the-job training is sufficient. «Matter of Sea, Inc., 19 I&N Dec. 817 (Comm. 1988)».
The courts have found experience alone sufficient. «Turbomotive, Inc. v. Weiss, ___ F.Supp. ___, Case No. H-88-563 (JAC) (D. Conn. July 27, 1989)», reported in 66 No. 30 Interpreter Releases 879 (Aug. 7, 1989) [Twenty-four years in engineering and $48,000 salary qualifies person as professional]; «Hong Kong TV Video Program, Inc. v. Ilchert, 685 F.Supp. 712 (N.D. Cal. 1988)» [Company president, 20 years of experience without degree]; «Globenet, Inc. v. Attorney General, ___ F.Supp. ___ No. 88-1261 (D.D.C. Jan. 10, 1989)» [Twenty-three years experience in data processing for posi- {} tion of electrical and electronics engineer], reported in 66 No. 3 Interpreter Releases 59 (Jan. 13, 1989).
An evaluation of work experience can be accomplished by: (1) an evaluation from an official who has authority to grant college level credit; (2) a recognized college level equivalency exam; (3) an evaluation by a reliable evaluation credential service as to education only; (4) evidence of certification or registration from a nationally recognized professional association; or (5) a determination by the DHS that the equivalent of college level training has been reached through a formula counting three years of experience as one year of college and that the alien has professional recognition. «Shanti, Inc. v. Reno, 36 F.Supp.2d 1151, 1161-66 (D.Minn. 1999)» [Upheld denial because notwithstanding evaluation applicant could not show that combined education and experience constituted equivalent in specialized area]. To demonstrate expertise must have recognition by two authorities in the field, membership in an association, publications by or about the applicant, licensure or achievements which a recognized authority has determined to be significant. 8 C.F.R. §214.2(h)(4)(iii)(D)(5). For an equivalence to an MA must have BA plus five years of experience. 8 C.F.R. §214.2(h)(4)(iii)(D)(5). For PhD applicant must hold the degree.
3. Attestation Requirements for H-1B—INA §212(n)(1), 8 U.S.C. §1182(n)(1); 137 Cong. Rec. S 18242, 18245, 18506-11 (Nov. 25, 1991), 137 Cong. Rec. H 11485 (Nov. 25, 1991); 59 Fed. Reg. 65646-79 (Dec. 20, 1994). Before an H-1B application can be submitted an employer must obtain certification of a labor condition application. 20 C.F.R. §655.700(a)(3). Companies deemed to be “dependent employers” or “willful violators” have special attestation requirements including that they have made good faith efforts to recruit U.S. workers. INA §§212(n)(1)–(3); 20 C.F.R. §655.700 et seq.; 65 Fed. Reg. 80110-80254 (Dec. 20, 2000). The “dependent employer” and “willful violator” provisions, however, sunset by their own terms on Oct. 1, 2003.
a. The labor condition application or attestation is filed on form ETA 9035 by mail with the regional office of the Employment and Training Administration of the DOL where the person will be employed, by Faxback Processing in Philadelphia or San Francisco or by electronic submission of ETA-9035E (§655.720) and requires the employer under 20 C.F.R. §§655.705(c), 655.730(d):
(1) To offer to H-1Bs the “required wage,” which is the greater of the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment at the place of employment or the prevailing wage for the occupation in the area of employment based on the best information available. The wage is in relation to employees working in “substantially the same duties and responsibilities.” 20 C.F.R. §655.731(a)(1). The prevailing wage must be determined at the time of filing and thereafter every 36 months and may be determined by federal prevailing wage laws (e.g., Davis-Bacon); collective bargaining agreement; state employment security agency (SESA); an independent authoritative source or another legitimate source. If another legitimate source is used employer will have to demonstrate its legitimacy if investigation is conducted. 20 C.F.R. §655.731(a)(2)(iii)(C). If SESA is relied upon it must be used within 90 days to obtain LCA or it is not valid. 20 C.F.R. §655.731(a)(2)(iii)(A)(1). The determination of the prevailing wage is based upon persons “similarly employed” throughout the area of intended employment, i.e., “having substantially comparable jobs in the occupational classification in the area of {} intended employment.” 20 C.F.R. §655.731(a)(2)(iv). DOL provided guidance on prevailing wage standards in GAL No. 1-00, Jacobs-Simmons, Deputy Asst. Sec., ETA (May 16, 2000) reprinted in 77 No. 21 Interpreter Releases 701, 706-15 (May 26, 2000) [Addresses employer surveys and discusses access to OES data which is now broken down into ALC data for most industries and EDU data for non-profits/educational institutions]; GAL No. 2-98, McConnell, Acting Admin. of Regional Management (Oct. 31, 1997), reprinted in 74 No. 43 Interpreter Releases 1712, 1716-27 (Nov. 7, 1997) [Providing criteria to be used if employer wishes private wage survey]; GAL No. 4-95, Farmer, Admin. for Regional Management (May 18, 1995), reprinted in 72 No. 24 Interpreter Releases 838, 848-55 (June 26, 1995). “Wages paid” is any compensation treated as earnings for income tax and FICA purposes. 20 C.F.R. §655.731(c)(2). “Wage rate” is remuneration exclusive of fringe benefits. 20 C.F.R. §655.715. Certain deductions such as the cost of attorneys fees for the H-1B/LCA if paid by the applicant, under certain circumstances, may be deducted from the wages paid to him to determine whether the applicant has received the appropriate prevailing wage rate. 20 C.F.R. §655.731(c)(9)(iii)(C). The “wage rate” is the average (arithmetic mean not the median or modal) rate of wages in the area of intended employment. GAL No. 2-98, supra. If an alternative survey is used to determine the prevailing wage it must: (a) rely on data collected within the past 24 months; (b) be published within the past 24 months; (3) be limited to area of intended employment unless an adequate sample is not possible; (4) reflect the arithmetic mean; (5) adequately match the employer’s job; (6) be cross-industry; and (7) based on sound statistical standards and methodology. GAL No. 2-98, supra.
(a) Prevailing Wage for Employees of Institutions of Higher Education and Nonprofits. INA §212(p), 8 U.S.C. §1182(p), 20 C.F.R. §656.40(c)(1)(i). Special provision that bases the prevailing wage only by comparison with the same type of institution or organization in the area of employment.
(2) To provide working conditions for H-1Bs that will not adversely affect other workers similarly employed. Working conditions commonly refer to matters “including hours, shifts, vacation periods, and fringe benefits.” 20 C.F.R. §655.732(b).
(3) To attest that there is no strike or lockout in occupational classification at the place of employment. Employers are prohibited from placing H-1Bs in a place where there is a strike or lockout or work stoppage in that occupation. 20 C.F.R. §655.733(a)(1).
(4) To provide notice to the bargaining representative if any, or to post notice that a labor condition application has been filed. See Procedure infra.
b. To file attestation employer must be within the U.S., must have an employer/ employee relationship with applicant, and must have an IRS tax I.D. number. 20 C.F.R. §655.715. Job contractors and employers with multiple employees may petition and the regulations do not preclude foreign employers from petitioning as long as they meet the above qualifications.
c. Procedure:
(1) Attestation shall contain the number of workers sought, the occupational classification for each, the prevailing wage and method for determining it, {} and the wage rate and working conditions. Employer must make attestation available for public inspection within one day of filing with DOL.
(2) Mail-In LCA. The LCA (Form ETA-9035), if sent by mail, shall be sent to the ETA service center at the following address: ETA Application Processing Center, P.O.Box 13640, Philadelphia, PA 19101. 20 C.F.R. §655.720(b). The DOL has developed faster methods to obtain LCAs through its “faxback” and “electronic filing” systems.
(3) Faxback. Processing: DOL has established a system where LCAs may be faxed to one centralized location at 1-800-397-0478. 20 C.F.R. §655.720(a).
(4) Electronic Filing. 20 C.F.R. §§655.720(c), 655.730(c); 66 Fed. Reg. 63298-03 (Dec. 5, 2001). Rather than submission by mail or fax an LCA may now be filed electronically by going to the DOL’s website: www.lca.doleta.gov and filling out the electronic version of the LCA form – ETA-9035E. The website even permits employers that frequently file ETAs to have secure files online. Under the electronic filing system, the ETA-9035E must be printed and signed by the employer immediately after ETA provides the electronic certification. The signed form must be maintained in the employer’s file, a copy of the signed form must be maintained in the public access file, and another copy submitted with the I-129. §§655.720(c), 655.730(c). To track the status of the LCA, DOL e-mail is lcstatus06@doleta.gov.
(5) Providing Copy of LCA to Employee. The employer shall provide a signed copy of the certified ETA-9035 or 9035E to the H-1B employee no later than the date s/he reports to work. 20 C.F.R. §655.734(a)(3).
(6) Each LCA must be limited to a single occupation but can list multiple locations where the H-1B employee will be working. 20 C.F.R. §655.730(c)(2).
(7) The position covered by LCA may be either full-time or part-time employment. Full-time and part-time positions cannot be combined on a single LCA. 20 C.F.R. §655.730(c)(3).
(8) The application is valid for the period of employment on the ETA-9035 and for no greater than a period of 3 years. A new prevailing wage does not have to be obtained every year but the SESA prevailing wage is valid for a period of not less than 90 days and not more than one year.20 C.F.R. §655.731(a)(2)(iii)(A). The period of validity of an LCA may not exceed 3 years. 20 C.F.R. §655.750(a).
(9) The Public Access File. An employer must maintain a public access file which is accessible to interested and aggrieved parties. The public access file must be available at either the employer’s principal place of business in the U.S. or at the worksite. 20 C.F.R. §655.760(a). An interested party is not necessarily adversely affected by the LCA but simply one that has “notified the DOL of his/her/its interest or concern in the administrator’s determination.” The employer must retain and make available for public inspection a “public access file” within one day after the LCA is filed with all documentation supporting the LCA, including:
(a) A copy of the completed LCA
(b) Documentation which provides the wage rate to be paid H-1B nonimmigrants; {}
(c) A full, clear explanation of the system that the employer used to set the “actual wage” paid in the position, e.g., memorandum to the file summarizing the system or a copy of the employer’s pay system (payroll records are not required for public display although they must be retained for 3 years from date of creation for enforcement purposes);
(d) A copy of the documentation used to establish the prevailing wage which may be solely a general description of the source and methodology (Davis-Bacon, SESA, etc.), although wage data must be kept for enforcement purposes;
(e) Copy of the notice given to the union/ employees. If to employees directly need hard copy posted notice or electronic notice;
(f) A summary of the benefits offered to U.S. workers in the same occupational classification, a statement as to how any differentiation in benefits is made (without divulging proprietary information) where there are differences, see 20 C.F.R. 655.731(c)(3);
(g) Where the employer undergoes a change in corporate structure (e.g., a successor corporation or “spin off”) a sworn statement by a responsible official of the new employing entity that it accepts all obligations, liabilities and undertakings under the LCAs filed by the predecessor employing entity, together with a list of each affected LCA and its date of certification, and a description of the actual wage system and the EIN of the new employing entity see 20 C.F.R. §655.730(e)(1); The sworn statement should be completed before the H-1B is employed. Letter, Hernandez, Director, Business and Trade Services, HQ 70/6.2.8 (June 7, 2001) reprinted in 78 No. 27 Interpreter Releases 1171, 1185-90 (July 16, 2001)
(h) Where the employer utilizes the definition of “single employer” in the Internal Revenue Code, a list of any entities included as part of the single employer in making H-1B determinations, see 20 C.F.R. §655.736(d)(7);
(i) Where the employer is H-1B dependent or a willful violator and it indicates an employee is exempt under 20 C.F.R. §655.737, a list of such exempt H-1B employees;
(j) Where the employer is H-1B dependent or a willful violator a summary of recruitment methods used and the time frames of recruitment of U.S. workers, see 20 C.F.R. §655.739(i)(4).
(10) Approval of application is required by the statute to occur within 7 days of filing unless application is incomplete or obviously inaccurate. 20 C.F.R. §§655.740(a)(1), (2). The Sec. of Labor reviews it only for completeness and obvious inaccuracies. INA §212(n)(1)(D).
(11) Retention of records. All records must be retained one year beyond LCA period or, if complaint is filed, until the complaint is determined. Payroll records must also be retained for these periods but in any event, no less than the 3-year period mentioned above.
(12) Certain posting and per diem payments to employees are also required. Although a number of these were successfully challenged in «National Ass’n of Manufacturers v. U.S. Dep’t of Labor, 1996 WL 420868 (D.D.C. July 22, {} 1996)» [Striking some requirements on APA notice and comment grounds], reported in 73 No. 29 Interpreter Releases 999-1,002 (July 29, 1996), DOL regulations were republished, see, e.g., 20 C.F.R. §655.734 [Regarding posting notices].
(a) Posting Notice. The notice must be posted, or where there is a union it must be given to the union before filing LCA, 20 C.F.R. §§655.730(d)(4), 655.734(a)(1). The notice may be the LCA or may be a document of sufficient size and visibility that indicates: (1) that H-1Bs are sought; (2) the number of H-1Bs; (3) the occupational classification; (4) the wages offered; (5) the period of employment; (6) the location(s) at which the H-1Bs will be employed; and (7) that the LCA is available for public inspection. The notices shall contain a provision stating where complaints for misrepresentations may be filed. The posting notice includes posting “in a least two conspicuous locations at each place of employment where any H-1B nonimmigrant will be employed” and the notices “shall be posted on or within 30 days before the date the labor condition application is filed and shall remain posted for a total of 10 days.” §655.734(a)(1)(ii)(A)(1)–(3). Hard copy notices may be posted in such areas as those including areas where wage and labor and Occupational Safety and Health notices are posted. 20 C.F.R. §655.734(a)(1)(ii)(A)(2). Alternatively an employer may provide electronic notice to employees in the “occupational classification” for which H-1Bs are sought. The employer may accomplish this through any means it normally communicates with employees including a “home page,” “electronic bulletin board” or “e-mail.” If accomplished through e-mail it need only be sent once; other electronic forms (e.g., home page) should be “posted” for 10 days. §655.734(a)(1)(ii)(B). Notices must be posted at each worksite including ones not originally contemplated at the time of filing but which are within the area of intended employment listed on the LCA. §655.734(a)(2). The H-1B employee must be provided with a copy of the certified LCA when he begins employment. §655.734(a)(3).
(b) Benching/Per Diem/Payment Requirements. An employer must continue to pay H-1B employee who is not performing work if it is due to a nonproductive status at the direction of the employer (e.g., benching an H-1B because of lack of assigned work, lack of a permit or license). 20 C.F.R. §655.731(c)(7)(i). It does not include circumstances where there is a nonproductive status unrelated to employment (e.g., caring for an ill relative) §655.731(c)(7)(ii).
(13) Amending LCA. No provisions to amend LCA’s. If change is material must file new LCA. Where employee promoted to a more advanced level need not file new LCA but must develop and maintain documentation explaining the changes and showing that the required wage has been met. Letter, Norris, Chief, Division of Foreign Labor Certifications, DOL (Nov. 4, 1996), reprinted in 73 No. 44 Interpreter Releases 1,634-36 (Nov. 18, 1996). Any change in occupational classification or permanent relocation to a place not reflected on LCA would require a new LCA. Id. Where an employer corporation changes its corporate structure as the result of an acquisition, merger, “spin-off” or other such action, the new employing entity is not required to file a new LCA and H-1B petition with respect to transferred employees even if there is a change in the EIN. 20 C.F.R. §655.730(e). However, the employer prior to employing the H-1B should maintain a sworn statement {} assuming all obligations, liabilities, and undertakings in all existing LCAs. 20 C.F.R. §655.730(e)(1); The sworn statement must be completed before the H-1B is employed. Letter, Hernandez, Director, Business and Trade Services, HQ 70/6.2.8 (June 7, 2001) reprinted in 78 No. 27 Interpreter Releases 1171, 1185-90 (July 16, 2001). A name change also does not require a new LCA. Letter, Norris, Chief, Division of Foreign Labor Certifications, DOL (Mar. 4, 1997), reprinted in 74 No. 26 Interpreter Releases 1083, 1094-95 (July 14, 1997). Moving within the same MSA does not require a new LCA. Letter, Richardson, Chief, Div. of Foreign Labor Certification, DOL (July 16, 1996), reprinted in 15 AILA Monthly Mailing 510 (Sept. 1996).
d. DOL has established a procedure to process complaints by an aggrieved person or organization or through its own initiated investigation relating to the failure of the employer to meet the above conditions or because of misrepresentation of those conditions. INA §212(n)(2), 8 U.S.C. §1182(n)(2); 20 C.F.R. §655.800 et seq. At least one ALJ has determined that the 30- and 60-day provisions for investigation and resolution of complaints under INA §212(n)(2)(B), 8 U.S.C. §1182(n)(2)(B) is not jurisdictional and does not bar the DOL Secretary from proceeding in a case against a defaulting employer. «Employment Standards Administration v. Synergy Systems, Inc., 04-LCA-22 (OALJ Mar. 5, 2004)».
e. Failure to comply may result in a fine ($1,000 to $35,000 per violation) and a debarment from all future approvals of any NIVs, IVs or LCs for at least one year. However, for most matters it must be a “substantial failure” to comply. INA §212(n)(2)(C). It must also be a wilfull failure which requires knowledge or reckless disregard. 20 C.F.R. §655.810(b). If employer has not paid appropriate wage s/he may be ordered to pay backpay. In certain cases where reinstatement is not possible the employer may also be required to pay frontpay «Matter of Rung, 04-LCA-00006 (Mar. 23, 2004)» [Where termination was not bona fide and irreparable animosity between the parties makes return to work not possible ALJ ordered frontpay for the remainder of the term of the LCA]. In determining penalty, DOL looks at: (1) previous history of violations; (2) the number of workers affected by the violations; (3) the gravity of the violation; (4) the violator’s good faith compliance efforts; (5) the violator’s explanation; (6) the violator’s commitment to future compliance; and (7) the extent of financial gain by the violation or the extent of others’ loss. 20 C.F.R. §655.810(c). See, e.g., «Administrator, Wage and Hour Division v. Mohan Kutty, M.D. et al., 01-LCA-00010 to 00025 (OALJ Oct. 9, 2002)» [Backpay award of over $980,000 including attorney’s fees for J-1 waiver and H-1B petitions]; «Administrator, Wage and Hour Division v. Ken Technologies, Inc., 03-LCA-00015 (OALJ July 18, 2003)» [Failure to notify DHS of termination kept clock running for back pay even where employee misrepresented his credentials] 8 No. 22 Bender’s Immigration Bulletin 1770-71 (Nov. 15, 2003); «Matter of Rajan, 02-LCA-00012 (OALJ Apr. 30, 2003)» [Employer required to pay back wages from date employee reported to date INS revoked H-1B notwithstanding lack of actual work during the entire period; employer also required to reimburse for H-1B fees] reported in 8 No. 21 Bender’s Immigration Bulletin 1716 (OALJ Nov. 1, 2003); «Matter of Miller, 02-LCA-00004 (Feb. 7, 2003)» [Employer not required to pay wages from date of H-1B filing under portability provision where employer sent INS a letter stating employment would not begin until after petition approved] reported in 8 No. 18 Bender’s Immigration Bulletin 1529-30 (OALJ Sept. 15, 2003).
f. Employers will be penalized for intimidating or threatening “whistleblowers.” INA §212(n)(2)(C)(iv). An employer will also be fined $1,000 for requiring an {} H-1B to pay a penalty for leaving the employer, but it shall not include lawful liquidated damages. INA §212(n)(2)(C)(vi).
g. Hearing. 20 C.F.R. §655.820. The employer is entitled to an APA hearing before an ALJ. Must request hearing within 15 days of administrator’s decision. 20 C.F.R. §655.820(d). Apply to Administrative Review Board. Failure to timely file, absent equitable tolling, results in dismissal of claim. «Wakileh v. Western Kentucky University, 03-LCA-23 (ALJ Oct. 6, 2003)» [Dismissed case where complainant’s failure to file request due to moving did not equitably toll the time for filing] reported in 80 No. 42 Interpreter Releases 1523-24 (Nov. 3, 2003). For a survey of LCA cases 73 No. 20 Interpreter Releases 673-78 (May 20, 1996), 80 No. 25 Interpreter Releases 868-72 (June 30, 2003).
h. Review of ALJ determination and federal court action. If a party is dissatisfied with the decision of an ALJ s/he may appeal the decision to the Secretary of Labor. 20 C.F.R. §655.840, 655.845. If a party is dissatisfied with the Secretary’s decision s/he may seek review in the U.S. District Court. 20 C.F.R. §655.850. At least one court has rejected a direct action in federal court for violations of the labor condition application statute, 8 USC §1182(n) without first exhausting the administrative process set forth above. «Shah v. Wilco Systems, Inc., 126 F.Supp.2d 641, 646-48 (S.D.N.Y. 2000)». [No private right of action to enforce 1182(n) violations or violations under unfair immigration employment practices §1324b].
i. Dependent Employers and Employers Who Willfully Violate Attestation Provisions. INA §212(n)(1)–(3); 8 U.S.C. §1182(n)(1)–(3); 20 C.F.R. §§655.700-760, 655.800-855; 65 Fed. Reg. 80110-80154 (Dec. 20, 2000); 144 Cong. Rec. S 10877-01 at S10878 (Sept. 24, 1998), S12741-04 at S12750 (Oct 21, 1998) [Statements of Senator Abraham]; 144 Cong. Rec. H8584 (Sept. 24, 1998), E2323-01 at E2324 (Nov 14, 1998) [Statements of Rep. Smith]. These provisions sunset on Oct. 1, 2003 and are therefore no longer law. Because Congress may re-enact these rules, however, the pre-sunset law is set below.
Law Prior to Sunset. Companies, who after Oct. 21, 1998, had been found to have willfully violated the attestation provisions in the past five years or employers who were considered “dependent employers” because they had a certain percentage of H-1B employees are required to file new attestation provisions with the DOL after Jan 19, 2001. A dependent employer is defined as an employer: (a) with 25 or fewer full time equivalent employees who employs more than 7 H-1Bs; (b) with at least 26 and not more than 50 full time equivalent employees and employs more than 12 H-1Bs; or (c) with at least 51 full time equivalent employees and employs a number of H-1Bs that is equal to at least 15% of the full time equivalent employees. 20 C.F.R. §655.736(a). If the employer is petitioning for a person who holds a master’s degree or higher (or its equivalent) in a specialty related to the intended employment or the employee will receive wages (including cash bonuses and similar compensation but not benefits) at an annual rate of at least $60,000, its applications are exempt from the attestation requirements. 20 C.F.R. 655.737. In determining the “equivalency” for a master’s degree, the employer cannot utilize work experience. 65 Fed. Reg. 80110 at 80137-38. In determining whether it is a “specialty related to the intended employment” DOL suggests the employer look to the Occupational Outlook Handbook and O*NET. 65 Fed. Reg. 80110 at 80138-39. The dependent employer must attest that the placement of the H-1B, either directly with the employer or indirectly with a contractor, did not and will not displace a U.S. worker in an essentially equivalent job between 90 days before until 90 days after the date of filing the visa petition. {} This includes U.S. employees of the employer as well as displacement of U.S. employees of another employer if the H-1B is placed at another employer’s worksite. For this “secondary placement” of workers, displacement can not occur within 90 days before and until 90 days after the placement of the workers at the secondary placement. INA §212(n)(2)(E). The employer must also attest that he has taken good faith steps to recruit U.S. workers at a compensation level and under procedures consistent with industry wide standards and that he has offered the job to any U.S. worker who is qualified. 20 C.F.R. §655.739. The recruitment attestation is not required for H-1B nonimmigrants who qualify under the employment based first preference. INA §212(n)(1)(G)(i). The employer’s obligations arise whenever it seeks new H-1Bs or extensions of H-1Bs. 20 C.F.R. §655.736(g). The burden is upon the employer to determine whether it is H-1B dependent. The employer who believes they may be “borderline” dependent should generally follow a short-hand test, called a “snap-shot” test to determine whether or not it is dependent. 20 C.F.R. §655.736(c)(2). The AG will establish an arbitration procedure to review an employer’s failure to offer a job to a qualified U.S. worker. An aggrieved job applicant may file a complaint. INA §212(n)(5).
(1) Defining An Employer for Dependent Status. INA §212(n)(3)(C)(ii). A “single employer” for purposes of determining dependent employer status is defined with reference to the Internal Revenue Code, 26 U.S.C. §414(b), (c), (m) and (o). 20 C.F.R. §§655.736(b). Where there is a change in corporate structure such as an acquisition, merger, “spin-off” or other such action, the new employing entity is not required to file new LCAs or H-1B petitions with respect to H-1Bs transferred to the new employer even where the Employer Identification Number (EIN) is changed. 20 C.F.R. §655.730(e).
(2) Defining Full Time Equivalent Employees (FTE). 20 C.F.R. §655.736(a)(2). FTE does not include bona fide consultants and independent contractors. 20 C.F.R. §655.736(a)(2)(i). An FTE is one who works 40 hours/week unless 35 hours would be considered bona fide. Part-time employees are aggregated to FTEs under a formula specified in the regulations. §655.736(a)(2)(ii)–(iv).
(3) Defining Essentially Equivalent Job. 20 C.F.R. §655.738(b)(2). To determine essential equivalency between the job of the laid off U.S. worker and the H-1B nonimmigrant DOL compares the following: (1) whether the job responsibilities were the same; (2) whether the qualifications and experience of the workers for the job were the same; and (3) whether the jobs were in the same area of employment. The “area of employment” is defined as “the area within normal commuting location where the work of the H-1B nonimmigrant is, or will be, performed. If such worksite or location is within a Metropolitan Statistical Area, any place within such area is deemed to be within the area of employment.” §655.738(b)(2)(iii). DOL has suggested the EPA standards provide a useful source of standards for assessing the essential equivalence of jobs. 65 Fed. Reg. 80110-01 at 80145-46 (Dec. 20, 2000).
(4) Defining Employed by the Employer. The common law standard applies in determining whether a U.S. worker is employed by a dependent employer or employed at another employer’s worksite where the H-1B worker is placed. DOL suggests that it will look to EEOC guidance to determine an individual’s employment status while rejecting IRS criteria as a model. 65 Fed. Reg. 80141-42 (Dec. 20, 2000). {}
(5) Defining Displacement of U.S. Workers. The displacement of U.S. workers only arises where there is a layoff of a U.S. worker and not: (1) a valid termination for cause, (2) retirement, (3) voluntary departure from employment, or (4) expiration of a contract of employment of the U.S. worker. 20 C.F.R. §655.738(b)(1). Displacement also does not occur if the U.S. worker was first offered but refused a similar employment opportunity with the same employer. INA §212(n)(4)(D)(i)(II), 20 C.F.R. §655.738(b)(1)(iv).
(a) Documents Required Regarding Non-Displacement. 20 C.F.R. §655.738(e). Employer is required to retain the following documents to meet the displacement requirements:
i) Direct displacement: (1) All employer records regarding circumstances that U.S. worker left; (2) employee’s name, last-known mailing address, occupational title and job description; (3) documentation concerning the employee’s experience and qualifications and principal assignments; (4) documents concerning the employee’s departure such as notification of termination by employer and the employee’s responses; (5) employee evaluations; and (6) terms of any offers by employer to employee of similar employment.
ii) Secondary displacement: (1) documentation showing the manner in which the employer satisfied its obligation to make inquiries as to the displacement of U.S. workers by the secondary employer;
(6) Defining Acceptable Recruitment Methods for U.S. Workers 20 C.F.R. §655.739(e). The employer’s recruiting methods “shall be at a level and through methods and media which are normal, common or prevailing in the industry, including those strategies that have been shown to be successfully used by employers in the industry to recruit U.S. workers.” Can use active (direct communication) or passive (advertising) solicitation and external or internal company solicitation. §655.739(d).
j. Mexican TN Applicants. Mexicans desiring TN status are no longer required to obtain approved petitions or LCAs. 8 C.F.R. §214.6(d). And there is no longer a numerical cap of Mexican TNs. 69 Fed. Reg. 11287-90 (Mar. 10, 2004).
4. Payment of Transportation by Employer:
a. If H-1B is dismissed before the end of the period for admission the employer must pay “the reasonable costs of return transportation of the alien abroad.” INA §214(c)(5)(A), 8 U.S.C. §1184(c)(5)(A), 8 C.F.R. §214.2(h)(4)(iii)(E). The enforcement of this provision is regarded as a private contractual matter. Letter, Simmons, Branch Chief, Business & Trade Service (HQ 70/6.2.8) (May 20, 1999) reprinted in 76 No. 28 Interpreter Releases 1125, 1140 (July 26, 1999).
5. Procedure for H-1Bs: 8 C.F.R. §214.2(h)(2).
a. Employer or agent applies on I-129. Agent must have contract and itinerary where appropriate. 8 C.F.R. §214.2(h)(2)(i)(F).
b. Special Fee/I-129W. The special fee of $1,000 is no longer required. However, the employer must continue to file the Form I-129W which is for statistical purposes. Part B of the I-129W pertaining to the $1,000 fee may be omitted. Memo, Yates, Assoc. Dir. Operations, BCIS, HQBCIS 70/6.2.8 (Sept. 15, 2003), posted on AILA InfoNet at Doc. No. 03091542 (Sept. 15, 2003). {}
c. Application at service center covering the place where the beneficiary performs services or receives training. Service center adjudicates all petitions including emergencies. 8 C.F.R. §214.2(h)(2)(i)(A). If service in more than one area then application must be made at least in one area.
d. If new employer, must file new petition (I-129). Requests for extensions or change of status are included directly on I-129 and separate application need not be filed. Only file I-539 for accompanying family members.
e. Proof that LCA has been filed must be submitted.
f. Petition validity will be recorded as of date of work not date of approval if submitted before work begins. Memo, Norton (Mar. 2, 1988), reprinted in 7 AILA Monthly Mailing 153 (Apr., 1988). Petition may be submitted up to 6 months before work begins. 8 C.F.R. §214.2(h)(9)(i)(B).
g. Additional Fee For Petition No Longer Required. Congress previously required the employer to pay a $1000 fee above the regular fee (currently $130) for the initial H-1B petition or for the first extension for persons already in H-1B status. This provision has now expired and an employer is no longer required to pay the $1,000 fee.
h. Documentation—8 C.F.R. §214.2(h)(4)(iv).
(1) Degrees; evidence of experience; written contracts. Sometimes need educational evaluation of person whose credentials were obtained abroad or evaluation of experience and education; affidavits of experts; translations. The Service should not challenge the credential evaluation if it is from a reputable company unless the evaluation contains obvious errors. Memo, Examinations (Nov. 13, 1995), reprinted in 73 No. 12 Interpreter Releases 364 (Mar. 25, 1996).
(2) License, temporary license, or without any license where person authorized to fully perform work under state law. Memo, Puleo, Asst. Comm., Adjudications, CO 214h-P (Dec. 3, 1987), reprinted in 64 No. 46 Interpreter Releases 1338 (Dec. 7, 1987). 8 C.F.R. §214.2(h)(4)(v). Can only receive approval for the period of temporary licensure. 8 C.F.R. §214.2(h)(4)(v)(E). Where lack of license is solely due to inability to obtain social security card which H-1B may not obtain because s/he is not in U.S., an H-1B petition may be approved if s/he provides evidence from state licensing board that the lack of an SS card is the only obstacle to licensure. Memo, Cook, Act. Asst. Comm. Adjudications, HX 70/6.2.8 (Nov. 20, 2001) reprinted in 78 No. 46 Interpreter Releases 1825, 1839-40 (Dec 3, 2001).
(3) Photocopies may be submitted. 8 C.F.R. §214.2(h)(2)(i)(A).
(4) H-1B (unlike I-140) need not provide proof of ability to pay salary. Memo, Examinations (Nov. 13, 1995), supra.
i. Changes in employment—INA §214(c)(10); 8 C.F.R. §214.2(h)(2)(i)(D).
(1) An amended H-1B petition shall not be required where the petitioning employer is involved in a corporate restructuring, including but not limited to a merger, acquisition, or consolidation, where a new corporate entity succeeds to the interests and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner. INA §214(c)(10), 8 U.S.C. §1184(c)(10). Where an employer corporation changes its corporate structure as the result {} of an acquisition, merger, “spin-off” or other such action, the new employing entity is not required to file a new LCA and H-1B petition with respect to transferred employees even if there is a change in the EIN provided the new employing entity assumes all LCA and immigration related obligations and liabilities. 20 C.F.R. §655.730(e). Even if the new employer does not comply with the LCA requirements of maintaining a sworn statement assuming liability for the existing LCA employees and therefore violates §655.730(e)(1), DHS does not require a new H-1B petition if it is simply a corporate merger or reorganization that does not affect employment. Letter, Hernandez, Director, Business and Trade Services, HQ 70/6.2.8 (June 7, 2001) reprinted in 78 No. 27 Interpreter Releases 1171, 1185-90 (July 16, 2001). A new or amended petition must be filed where: (1) place of employment is changed if the change is not covered by the LCA; (2) change of person’s duties from one specialty occupation to another; (3) material change in the terms and conditions of employment; or (4) a new LCA must be filed pursuant to DOL regulations. A new or amended petition is also not needed when: (1) employer changes its name; or (2) employer changes ownership/ a successor-in-interest, unless a new LCA must be filed. Letter, Hernandez, Acting Director, Business and Trade Services, HQ 70/6/2/8 (Feb. 4, 2000), reprinted in 77 No. 17 Interpreter Releases 585, 590-91 (May 1, 2000); Memo, Aleinikoff, Exec. Assoc. Comm., HQ 70/6.2.8-P (Aug. 22, 1996), reprinted in 73 No. 35 Interpreter Releases 1222, 1231-32 (Sept. 16, 1996); Memo, Hogan, Exec. Assoc. Comm., Operations, CO 214h-C (Oct. 22, 1992), reprinted in 69 No. 43 Interpreter Releases 1439, 1448-49 (Nov. 9, 1992). A new or amended petition is also not required simply on the basis of an employee’s geographic move “[a]s long as the LCA has been filed and certified for the new employment location, the appropriate worksite posting has taken place, and other wage and hour obligations are met...” Letter, Hernandez, Director, Business and Trade Branch, CIS (Oct. 23, 2003), posted on AILA InfoNet at Doc. No. 03112118 (Nov. 21, 2003). Where successor corporation assumes petitioning company’s posture it is not required to file new petition (although with L-1 it would). Letter, Hernandez, Acting Director, Business and Trade Services, HQ 70/6/2/8 (Feb. 4, 2000), reprinted in 77 No. 11 Interpreter Releases 585, 590-91 (May 1, 2000); Letter, Weinig, Deputy Asst. Comm., Adjudications (June 2, 1988), reprinted in 65 No. 28 Interpreter Releases 735, 751-52 (July 25, 1988). New H-1Bs do not have to be filed where one company purchases several others and consolidates them under one of the purchased companies where there would be no material change in working conditions. Letter, Brown, Acting Chief, Business and Trade Services Branch, Benefits Division, INS, HQ 70/6.2.8 (Dec. 17, 1996), reprinted in 74 No. 4 Interpreter Releases 188, 205-07 (Jan. 27, 1997). Minor changes in job duties or salary increase do not require a new petition, only material changes do. If an amended petition is filed it must be accompanied by an LCA. A promotion to a higher position within the same occupation would not normally require filing an amended petition provided applicant must utilize same academic training. Letter, LaFleur, Chief, NIV Branch, Adjudications, HQ 214h-C (Oct. 12, 1995), reprinted in 72 No. 45 Interpreter Releases 1578, 1599-1601 (Nov. 20, 1995). By regulation DHS requires a petitioner to “immediately notify the Service of any changes in the terms and conditions of employment of a beneficiary which may affect eligibility” under the H category. 8 CFR §214.2(h)(11)(i)(A).
(a) Returning at Port of Entry. When there is a successor employer and H-1B returning at port of entry, s/he should present a letter stating that the {} new corporate entity has succeeded the previous employer and that the terms and conditions of employment remain the same. Memo, Cronin, Acting Ex. Assoc. Comm. Program, HQPGM 70/6.2.8 (June 19, 2001) at ¶III B 1, reprinted in 78 No. 25 Interpreter Releases 1069, 1108-17 (July 2, 2001).
(2) Termination of Employment. Leave under the Family and Medical Leave Act does not terminate the H-1B relationship with the employer. Letter, Hernandez, Acting Director, Business and Trade Service (HQ 70/6.2.8) (Feb. 2, 2000) reprinted in 77 No. 8 Interpreter Releases 243, 252 (Feb.28, 2000). If the petitioner no longer employs the beneficiary, the petitioner “shall” send a letter explaining the change to the director who approved the petition. 8 CFR §214.2(h)(11)(i)(A).
(3) Portability. Employment upon filing petition. A person in H-1B status may commence new employment upon the filing of a new petition by the prospective employer if: (1) s/he was lawfully admitted; (2) the new petition is “nonfrivolous”; (3) the new petition was filed before the date of expiration of the period of stay authorized by the AG of the H-1B beneficiary; and (4) subsequent to such lawful admission the H-1B beneficiary has not been employed without authorization before the filing of such petition. INA §§214(n)(1), (2)(A)–(C). Filing is defined at 8 C.F.R. §103.2(a)(7)(i) as physically received by CIS. The Service has determined that a “nonfrivolous” petition is one that “is not without basis in law or fact.” Memo, Pearson, Ex. Assoc. Comm. HQOPS 70/20 (Jan 29, 2001) reprinted in 78 No. 7 Interpreter Releases 365, 381-83 (Feb. 12, 2001). In order to be admitted at the border under the portability provisions an applicant must meet the following requirements: (1) S/he must otherwise be admissible; (2) S/he must be in possession of a valid unexpired passport and visa, unless exempt under 8 C.F.R. §212.1; (3) S/he must establish that she was previously admitted in H-1B status by presenting the I-94 or I-797; and (4) S/he must present the filing receipt form I-797 for the new H-1B or other evidence of timely filing prior to expiration of previous H-1B. If the H-1B is not in possession of I-797 and a CLAIMS inquiry shows no evidence of the new petition being filed or if the original petition has expired and there is no evidence of the approval of a new one, the person may not be admitted in H-1B status. Memo, Pearson, supra; Memo, Cronin, Acting Ex. Assoc. Comm. Program, HQPGM 70/6.2.8 (June 19, 2001) at ¶II D, reprinted in 78 No. 25 Interpreter Releases 1069, 1108-17 (July 2, 2001).
(4) Where beneficiary switches employers and obtains a longer date on the petition and extension of stay filed by the second employer, his stay will be governed by the longer date. This is true even though the employee was admitted into the U.S. under the first petition while the extension of stay was still pending. Letter, Simmons, Branch Chief, Business and Trade Services (HQ 70/6.2.8) (Oct. 20, 1999), reprinted in 76 No. 46 Interpreter Releases 1723, 1745 (Dec. 3, 1999).
(5) If an amended petition is filed it must be accompanied by a new LCA. However, where an LCA exists at another worksite, transfer to that worksite does not require an amended petition. Letter, Russell, Acting Branch Chief of Business and Trade Services Branch, Benefits Division, INS, HQ 70/6.2.8 (Mar. 12, 1997), reprinted in 74 No. 22 Interpreter Releases 934, 950-52 (June 9, 1997). Letter, Simmons, Branch Chief, Benefits & Trades Section (HQ 70/6.2.8) (Nov. 12, 1998) reprinted in 75 No. 48 Interpreter Releases {} 1740, 1750-51 (Dec. 21, 1998) [If H-1B approved for site A and person is then transferred to site B and there are LCA’s for both sites an amended H- 1B petition is not necessary. However, if the person never worked at site A then a new (not simply amended) petition must be filed to work at site B]. “As long as the LCA has been filed and certified for the new employment location, the appropriate worksite posting has taken place, and other wage and hour obligations are met, no amended petition would be required regardless of when the LCA was filed and certified, as long as the certification took place before the employee was moved.” Letter, Hernandez, Director, Business and Trade Branch, CIS (Oct. 23, 2003), posted on AILA InfoNet at Doc. No. 03112118 (Nov. 21, 2003).
(6) Short Term Placement. 20 C.F.R. §655.735(c). An H-1B in the U.S. under an LCA may be sent to a new worksite which is not covered by an LCA in the occupation but only up to a maximum of 30 days each year and up to 60 days each year if the H-1B spends substantial time at a permanent worksite, if s/he continues to maintain an office or work station at the permanent worksite and if her U.S. residence or place of abode is located in the area of the permanent worksite.
(7) Multiple Employers. H-1B can work part-time for more than one employer, but each must file a petition. Letter, Bednarz, Chief, NIV Adjudications, CO 214h-C (June 29, 1994), reprinted in 71 No. 27 Interpreter Releases 936, 952 (July 18, 1994); Letter, Gorsky, Acting Chief Advisory Opinions Division, DOS (Apr. 13, 1998) reprinted in 75 No. 17 Interpreter Releases 631, 648 (May 4, 1998). When H-1B switches to a second company for several months and returns to initial company, the second company needs to file an H-1B but the first company need not file a petition upon the H-1B’s return as the first petition remains valid. Letter, LaFleur, Chief, Business and Trade Branch, Benefits Division, INS, HQ 70/6.2.8 (Apr. 29, 1996), reprinted in 73 No. 22 Interpreter Releases 764, 774-75 (June 3, 1996). There is no set number of hours that beneficiary must work for each employer. Letter, Brown, Acting Chief, Business and Trade Services, Benefits Division, INS, HQ 70/6.2.8 (July 18, 1997), reprinted in 74 No. 30 Interpreter Releases 1219, 1232-33 (Aug. 11, 1997).
(8) Extension of stay to work for same employer, if timely filed, continues employment for 240 days beyond expiration of the I-94 while decision pending.
(9) Reduction in Force (RIF) as termination. If company has RIF policy but gives H-1B employee several months severance after RIF, the H-1B ceases status from the day he stops employment not the day his severance ends. Letter, Simmons, Branch Chief, Business and Trade Branch (HQ 70/6.2.8, HQ 70/6.2.12) reprinted in 76 No. 9 Interpreter Releases 378, 385-87 (Mar. 8, 1999).
(10) Employer Where Person Referred
(a) Who is the employer when an agency hires the employee and refers her to the ultimate employer? At least one court has found that the employer for purposes of determining H-1B status is the ultimate employer not the agency. «Defensor v. Meissner, 201 F.3d 384 (5th Cir. 2000)» [Affirmed INS’ denial of H-1Bs to nurses with bachelor degrees because the hospitals where they would work did not require B.N.S. degrees even if the employment agency that hired them did]. {}
(b) Professional Employer Organizations (PEO). Where employer hires a PEO to handle its administrative matters in regard to its employees such as payroll and health insurance but the employer still retains control over the day-to-day activities of the H-1B, the employer can petition (and would be responsible) for the H-1B because it would still be considered the U.S. employer as defined under 8 C.F.R. §214.2(h)(4)(ii). Letter, Hernandez, Director, Business and Trade Services, INS, HQ 70/6.2.8 (Dec. 20, 2000) reprinted in 78 No. 27 Interpreter Releases 1172, 1191-94 (July 16, 2001). A PEO could file for an H-1B if it met the definition of a U.S. employer under the regulations and was not simply a record keeper or accountant. Id.
(11) Revocation—8 C.F.R. §214.2(h)(11)—Automatic if petitioner dies, goes out of business or withdraws petition.
j. By notice—May revoke if: (a) beneficiary is no longer employed in same capacity; (b) petitioner violated the terms of the approved petition, and (c) where statements in original petition incorrect. Petitioner may rebut evidence presented by Director.
k. Appeal:
(1) No appeal from automatic revocation.
(2) Appeal from Notice of Denial to Associate Commissioner.
6. Admission and Extension for H-1B—8 C.F.R. §§214.2(h)(9), (13), (15).
a. Petition approval for 3 years on I-797. However, in a specialty occupation it may not exceed the period of validity of the LCA, 8 C.F.R. §214.2(h)(9)(iii)(A)(1), and in a DOD project it may be up to 5 years. CIS officers should not be arbitrarily limiting approvals to time period left on professional license when such license, e.g., teaching, is renewable. Letter, Brown, Acting Chief, NIV Branch, Adjudications, CO 214h-C (July 14, 1995), reprinted in 72 No. 31 Interpreter Releases 1093, 1109-10 (Aug. 14, 1995).
b. Admission is for maximum (including extensions) of 6 years. 8 C.F.R. §214.2(h)(13)(iii). «Nair v. Coultice, 162 F.Supp.2d 1209 (S.D. Cal. 2001)» [Reversed INS’ recent interpretation and found that time abroad was not part of the 6 years]. The 6-year limit applies to spouses and dependents in H-4 status. 8 C.F.R. §214.2(h)(9)(iv). The 6-year limitation does not apply to an alien who resides less than 6 mos./yr in U.S., or who is a seasonal or intermittent employee. 8 C.F.R. §214.2(h)(13)(v). Periods where alien unemployed in U.S. or failed to maintain status would be counted toward the 6-year limitation. Memo, Puleo, Asst. Comm. (Apr. 17, 1989), reprinted in 66 No. 16 Interpreter Releases 455, 471-72 (Apr. 24, 1989). Departures from U.S. that are meaningfully interruptive of the H-1B employment may toll 6-year limitation. Memo, Weinig, Acting Assoc. Comm., Exam. (CO 214h-C, CO 214L-C) (Mar. 9, 1994), reprinted in 71 No. 16 Interpreter Releases 562, 582 (Apr. 25, 1994). But see Nair v. Coultice supra finding that all time out of U.S. is not considered. Cannot exceed 6 years by changing from H to L or L to H and cannot extend 6-year rule by changing employers at end of the 5th year. Id.; «Matter of Safetran, 20 I&N Dec. 49 (Comm. 1989)». Time spent in L status counted toward the 6-year period for H. LOS-N-83573 (WRSC May 19, 1988), EAC 88-053 0121 (NYC June 21, 1988), reported in 7 AILA Monthly Mailing 497 (Oct. 1988). There is an issue, however, as to whether the “time spent” waiting for the approval of the grant of a c/s from the DHS from L-1 to H-1B status can be deducted from the 6-year limitation. {}
Admission will be for the validity period of the petition, plus a period of up to 10 days before the period runs and 10 days after expiration. 8 C.F.R. §214.2(h)(13)(i)(A). The 10-day period however does not apply to an H-1B who is terminated. There is no “grace period” for a terminated employee. Letter, Hernandez, Director, Business and Trade Services Branch, Off. of Adjudications (Mar. 27, 2001) reprinted in 78 No. 13 Interpreter Releases 608, 616-18 (Apr. 2, 2001). It is also DHS policy that an H-1B should not enter the U.S. more than 10 days prior to the start of his authorized employment and therefore visas should not be issued more than 10 days before the beginning of employment unless the issuance is from a high volume post in anticipation of the fiscal year (Oct 1st) rush. Cable, DOS, 04-State-74313 (Apr. 2, 2004), posted on AILA InfoNet at Doc. No. 04040862 (Apr. 8, 2004).
An H-1B may extend his or her status beyond the 6-year limitation if a labor certification, an I-140 or employment-based adjustment application has been filed where 365 days or more have elapsed, since the filing of a labor certification (where one was required) or the filing of the I-140 petition. H-1B status shall be extended in one-year increments. See AC21, Pub. L. 106-313 §106(a); Adjudicator’s Field Manual at 31.1(b), 31.2(d) and 31.3; Memo, Cronin, Acting Ex. Assoc. Comm. Program, HQPGM 70/6.2.8 (June 19, 2001) at ¶II E, reprinted in 78 No. 25 Interpreter Releases 1069, 1108-17 (July 2, 2001); 21st Century Department of Justice Appropriations Authorization Act, Pub. L. 107-273 Sec. 11030A (Nov. 2, 2002); Memo, Yates, Acting Assoc. Dir. Operations, CIS (Apr. 24, 2003), posted on AILA InfoNet at Doc. No. 03050145 (May 1, 2003). The H-1B extension in one-year increments also applies to the filing of an I-360 religious worker petition that is pending more than 365 days. Letter, Hernandez, Director, Business and Trade Branch, BCIS, HQADN 70/21 (June 6, 2003) reprinted in 80 No 26 Interpreter Releases 902, 927-28 (July 7, 2003). However, if the 6-year period of stay expires before the end of the requisite 365 days, the H-1B does not benefit from this provision and is simply out of status. Cable, 01-State-102000 (June 11, 2001) reprinted in 78 No. 24 Interpreter Releases 1042-43 (June 18, 2001). The LC and I-140 may be from prior employer. Letter, Hernandez, Dir., Business & Trade Servs., HQ70/9.1 (Apr. 24, 2002), posted on AILA InfoNet at Doc. No. 02050231 (May 2, 2002).
An H-1B may also be extended beyond the 6-year period for any person who is the beneficiary of a first, second, or third employment-based petition but due to per country limitations is unable to obtain his or her immigrant visa. AC21 §104(c).
H-1B extensions beyond six years are also given to H-4 family members and a person who is an H-1B for the maximum period may c/s to H-4 and remain in the U.S. based on the principal’s status. Memo, Yates, Acting Assoc. Director, BCIS, HQBCIA 70/6.2.8-P (Apr. 23, 2003) at B posted on AILA InfoNet at Doc. No. 03050145 (May 1, 2003).
The H-1B may obtain extensions in one-year increments until: (1) the LC is denied or if LC is approved until the EB petition was denied; (2) the EB immigrant petition is denied where no LC was filed; or (3) the grant or denial of the IV or A/S. Memo, Yates, Acting Assoc. Director, BCIS, HQBCIA 70/6.2.8-P (Apr. 23, 2003) at B posted on AILA InfoNet at Doc. No. 03050145 (May 1, 2003); Memo, Cronin, Acting Ex. Assoc. Comm. Program, HQPGM 70/6.2.8 (June 19, 2001) at ¶II C 1, reprinted in 78 Interpreter Releases 1108-17 (July 2, 2001). The extension may be filed by the H-1B’s current employer or a new employer. {} Memo, Yates, Acting Assoc. Director, BCIS, HQBCIA 70/6.2.8-P (Apr. 23, 2003) at D, posted on AILA InfoNet at Doc. No. 03050145 (May 1, 2003).
c. Extensions of visa petition and extension of stay all filed on an I-129. 8 C.F.R. §§214.2(h)(14), (15). A request for a petition extension cannot be filed if stay expired. The request for an extension must be accompanied by the new LCA. A person may even travel abroad while an extension is pending. Approval via cable will be sent to the appropriate consular post upon petitioner’s request. 8 C.F.R. §214.2(h)(15)(i). Extensions are given up to a total period of 6 years unless one of the circumstances mentioned supra applies. Extensions are authorized for a period of up to 3 years at any one time. If extensions are permitted beyond the 6- year period they are given in one-year increments. Extensions are not counted in the numerical cap on H-1Bs. A denial of an extension may not be subject to judicial review. «CDI Information Services, Inc. v. Reno, 278 F.3d 616 (6th Cir. 2002)» [No jurisdiction under INA §242(a)(2)(B)(ii) to review a denial of an H- 1B extension]; But see «Evangelical Lutheran Church in America v. INS, 288 F.Supp.2d 32, 40-45 (D.D.C. 2003) appeal dismissed 2004 WL 434067 (D.C. Cir. Mar. 3, 2004)» [Rejected the discretionary decision bar, INA §242(g) bar, and committed to agency discretion bar in reviewing the denial of an untimely filed H-1B extension and reversed former INS decision].
d. Filing During Pendency of LPR applications. An H-1B may apply for an extension of status (including dependents), a new H-1B petition, or a change of status to another H or L category even if s/he has filed an application for or received an approval of a LC, an IV petition or filed an A/S application. 8 C.F.R. §214.2(h)(16)(i). However, if H-1B with pending A/S applies for an EAD based on A/S and works for another employer, her H-1B status is violated. Adjudicator’s Field Manual §30.1, App. 23.4, 31-2a. AC21 changes that for those H-1Bs whose A/S applications are pending more than 180 days. INA §204(j).
e. Attending Classes. There is nothing in the INA or the regulations that prohibits an H-1B from attending classes as long as they are incidental to H-1B status. Letter, Bednarz, Chief, NIV Branch, Adjudications, CO 214h-C (Jan. 5, 1995), reprinted in 72 No. 6 Interpreter Releases 211, 227 (Feb. 6, 1995).
7. Family Members. Immediate family (spouse and children) accompanying H-1B (or H-2A&B or H-3) will be granted an H-4 visa. The 6-year limit on admission and extensions for an H-1 applies to spouses and dependents in H-4 status. 8 C.F.R. §214.2(h)(9)(iv), but H-4s will get the benefit of any extension the H-1B can obtain beyond the six years where an LC, I-140 or I-360 was filed at least 365 days before the end of the 6th year. AC21 §106 permits extensions till AOS or IV applications are approved. If an H-1B reaches the maximum period and cannot extend beyond the six years, the H-1B may c/s to H-4 and remain in the U.S. based if his spouse or parent (the principal’s) status has not expired. Memo, Yates, Acting Assoc. Director, BCIS, HQBCIA 70/6.2.8-P (Apr. 23, 2003) at B posted on AILA InfoNet at Doc. No. 03050145 (May 1, 2003) An H-4 is not necessary and a child or spouse can accompany or follow to join the beneficiary with a B-2 if it is inconvenient or impossible to apply for H-4. 9 FAM 41.53 N18.4. An H-4 in status need not file an extension when the principal H-1B changes employment. Letter, LaFleur, HQ 70/6.2.8-C (Dec. 28, 1995) reprinted in 73 No. 3 Interpreter Releases 78, 95 (Jan. 16, 1996). Servants accompanying family may enter on B-1s. 9 FAM 41.53 N16.
8. Travel and Employment Authorization While Adjustment Application is Pending—If an H-1 is not under exclusion, deportation, and removal proceedings and is in valid H-1 status, s/he may travel while her A/S application is pending without an advance {} parole if she: (1) is coming to resume employment with the same employer her H-1 is authorized for; (2) is in possession of a valid H visa; and (3) is in possession of the original I-797 receipt. Dependent family members in lawful H-4 status may also travel during the A/S if the same conditions for the H-1 principal exist. 8 C.F.R. §§245.2(a)(4)(ii)(C), 1245.2(a)(4)(ii)(C). However, if s/he travels and reenters on an advance parole and she has a valid and approved H-1B petition, she may apply for an extension of her status and DHS will terminate her parole and admit her as an H-1B. Adjudicator’s Field Manual, Appendix 23-4, Memo, Cronin, Acting Assoc. Comm., Office of Programs HQADJ 70/2.8.6,2.8.12,10.18 (May 16, 2000) reprinted in 77 No. 20 Interpreter Releases 672, 677-80 (May 22, 2000). The employer may also apply for a new H-1B or the employee with a valid H-1B visa may depart and reenter as an H-1B. AFM, Appendix §23-4. Even if the employee reenters on an advance parole and continues her H-1B employment she will not be considered to engage in unauthorized employment. Id.