The H-1B Classification
By Liu Yu
6. Petition Process
● Filing Procedure and the Lottery System
H-1B petitions are usually filed during the first five business days of April. This is because the earliest that an H-1B petition will be accepted by USCIS is 6 months before the date of actual need for the beneficiary’s services. Since USCIS’s fiscal year runs from October 1 through September 30, an H-1B petition will be accepted no earlier than April 1 of any year.
The USCIS Service Center at which it should be filed depends upon a number of factors, including whether the petitioner is cap-exempt or cap-subject, whether the petition is an extension request without change, whether the petition is for an H-1B1, and where the primary place of employment is located.
Any H-1B petition that was received on the final receipt date and was not selected in the lottery will be rejected. The same is true for any H-1B petition received after the final receipt date. Any cap-subject H-1B petitions filed after the quota has been exhausted will be rejected, as well as the filing fee.
● Labor Condition Application
In order to file an H-1B petition, the employer must first obtain from the Department of Labor (DOL) an approved Labor Condition Application (LCA) (Form ETA 9035 and/or ETA 9035E) in the occupational specialty in which the alien will be employed.
The LCA is attestation-based, i.e. the employer makes certain promises to DOL. The employer is also required to keep supporting documentation on file, which is to be available for public examination. This file is referred to as the public access file. In these attestations, the employer promises that:
◆ It will pay the required wage: the higher of the prevailing wage and the actual wage;
◆ It will provide working conditions for the nonimmigrant that will not adversely affect working conditions of workers similarly employed;
◆ There is not a strike or lockout in the occupational field at the place of employment; and
◆ It has provided notice of the filing of the LCA to the applicable union representative, or if there is no such representative, has provided notice of the filing through posting in the workplace or electronic notification to employees in the occupational classification.
If the employer is considered H-1B dependent or is a “willful violator,” additional attestations are required.
DOL administers the labor condition application process, with the Employment and Training Administration (ETA) being responsible for receiving and certifying labor condition applications.
● Prevailing Wage
Employers are required to pay nonimmigrants in the H-1B at least the prevailing wage for the occupational classification in the area of employment, or the actual wage—the amount paid by that employer to all other individuals with similar experience and qualifications for the specific employment in question.
One can obtain prevailing wage information from the DOL’s Occupational Employment Statistics Survey (OES) wage library, which estimates wages paid in various areas of the country for some 800 occupations. Alternatively, one can also obtain prevailing wage information using government determinations, surveys or independent authoritative sources. OES wages for each occupation are usually stated in multiple levels. Determination of the OES wage level depends on consideration of the experience, education, and skill required by the employer.
Once the prevailing wage has been obtained, it must be stated on the LCA, as must the wage offered to the beneficiary. The offered wage may also be stated as a range, but the bottom of the range can be no lower than the prevailing wage. The public access file should also document the prevailing wage determination. A general description of the source and methodology is required for the public access file.
In addition, notice must be given to U.S. workers on or within 30 days before the date the employer files the LCA. The employer must give a copy of the LCA to each H-1B worker no later than the date he/she reports to a permanent place of work.
● LCA step by step:
◆ Check prevailing wage on Occupational Employment Statistics website.
◆ Determine required wage (higher of actual wage or prevailing wage).
◆ Send for education evaluation/translation, if necessary.
◆ Employer posts the notice of the filing of the LCA (or the information therein) for 10 days in two conspicuous locations at the place of employment.
◆ Submit LCA online.
◆ Public Access File to be prepared and sent to employer.
◆ Employer signs Certified LCA.
● The Petition Package
After receiving certification of the LCA, the H-1B petition can be prepared and submitted. USCIS has stated its “preferred order of documents,” as follows:
◆ Form I-907, if applicable
◆ Form G-28
◆ Form I-129
◆ Supplement H
◆ Form I-129W
◆ Table of Contents, with the following documents tabbed:
◎ Evidence of the foreign national’s lawful immigration status, if applicable, and a copy of the biographic page of the passport
◎ Approved LCA
◎ Support statement from U.S. company
◎ Attorney’s cover letter
◎ Other supporting documentation, which may include evidence that the foreign national meets the minimum requirements for the job opening as stated on the temporary labor certification, as discussed above, if applicable
● Duplicate copy of the H-1B petition.
The petitioner’s support statement should summarize the job duties and the beneficiary’s qualifications. The statement should be on the U.S. company’s letterhead and signed by a representative of the U.S. company. One format of a support statement is as follows:
◆ Introduction;
◆ Information about the petitioner;
◆ Discussion of the job duties and requirements;
◆ Discussion of the foreign national’s educational and experience background; and
◆ Conclusion.
The final paragraph may contain the necessary information about the amount of remuneration and confirmation that the petitioner will comply with the terms of the labor condition application during the beneficiary’s H-1B employment.
The H-1B petition should be filed in duplicate, with original signatures on one set of documents, and the duplicate being a complete photocopy of the petition, including supporting documents. The USCIS Service Center at which it should be filed depends upon factors including whether the petitioner is cap-exempt or cap-subject, whether the petition is an extension request without change, whether the petition is for an H-1B1 (for Chile and Singapore nationals), and where the place of employment is located.
● RFEs
Generally, an RFE will be issued if USCIS believes that the petitioner has failed to establish eligibility for the benefit sought.
A common reason for an RFE is to confirm that the petitioner has a bona fide professional job in the business. RFEs may be issued for H-1B petitions filed by small businesses for aliens with professional skills not normally associated with persons employed in such a business. The focus of the inquiry is sometimes on whether the H-1B petition is an accommodation to a relative or friend who will seek other employment, although another factor may be whether there is an agreement to work for lower wages.
The petitioner bears the burden of proof to demonstrate the need for such an employee, and that beneficiary will not be employed in a lesser capacity and engaged in non-qualifying job duties.
Therefore, the petition should include evidence of the new project or initiative that gave rise to the legitimate need for the beneficiary’s services. For example, an enterprise that owns two restaurants may seek to hire a management analyst as part of a plan to open a new restaurant.
● Visa Application
Upon approval of the H-1B petition, USCIS will send the attorney or representative an approval notice and the company representative will receive a courtesy copy. With the approval notice, the foreign national may make an appointment to apply for an H-1B visa at a U.S. consulate abroad. If the foreign national’s previous visa has expired or “will have expired before the date of his or her intended return,” but the H-1B petition remains valid, then he or she also “may use a copy of Form I-797 to apply for a new or revalidated visa during the validity period of the petition.
Following approval of the H-1B petition, the foreign national, and his or her dependent spouse and family members, if applicable, may apply for H visas at a U.S. consulate abroad. (Canadian citizens do not require visas in order to enter the United States. Canadian nationals may apply for admission with the H-1B approval notice and Canadian passport at the port of entry.)
In addition to the general visa application documents, the following documents should be presented, and individual consulates frequently have additional requirements:
◆ Original Form I-797 approval notice from USCIS;
◆ Statement from the petitioner confirming that the foreign national continues to perform the H-1B assignment, if the foreign national obtained change of status from another nonimmigrant category;
◆ Certified copy of the H-1B petition, to be presented only if specifically requested; and
◆ Evidence of the visa applicant’s qualifications.
In addition, due to the visa reciprocity schedules, a foreign national may receive a visa valid for a shorter time period than the H-1B petition, but the expiration of H-1B status should match the end date of the H-1B petition and not the end date of the H-1B visa. For example, Chinese citizens are eligible for H visas valid for no longer than 12 months. Therefore, even though the underlying H-1B petition was approved for three years, a Chinese citizen will be able to obtain an H visa that is valid for only 12 months from the date of visa issuance.
● Admission to the United States
A foreign national may seek H-1B admission up to 10 days before the start date of the petition and may remain in the United States for 10 days after expiration of the petition if the I-94 card lists an expiration date incorporating this additional 10-day period, although the beneficiary may not work except during the validity period of the petition.
7. Extensions and Time Limitations
An H-1B extension should also be filed on Form I-129 to extend the validity of the original petition. A request for an extension must be filed before the expiration of the validity period of the original petition.
Evidence of prior approvals usually do not serve as the basis for future eligibility for the extension. Prior approval of the original H-1B petition can be helpful to USCIS but does not obligate USCIS to approve a subsequent petition. When filing an extension application, the petitioner is advised to provide sufficient documentation to establish current eligibility. Derivative beneficiaries can also extend H-4 status along with the principal’s extension of H-1B status.
H-1B status may be held for a maximum of six years unless the alien qualifies for an exemption from limits on the maximum period of stay. At the end of the six-year period, the alien must either seek permanent resident status or depart the United States. A new petition will not be approved on behalf of the beneficiary until he or she has resided and been physically present outside the United States for one year, except for brief trips for business or pleasure. This includes an H-1B extension. Please note that periods when the alien fails to maintain status shall also be counted towards the applicable limit.
8. Sponsoring H-1B Workers for Permanent Residency
If the petitioner sponsors H-1B workers for permanent residency, certain exceptions may apply regarding the time limitations stated above. The H-1B worker and H-4 derivatives may also travel internationally after applying for adjustment of status. They may re-enter the United States by presenting valid H visas and do not necessarily need to apply for advance parole.
The H-1B principal must be returning to resume employment with the same employer for whom he or she had previously been authorized to work as an H-1 worker. When an H-4 dependent seeks U.S. admission, the H-1B principal must be maintaining valid H-1 status and the H-4 dependent must also remain otherwise eligible for H-4 status.
（The End）
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