H-1B Non-Immigrant Work Permit Lottery Program
Written by: David Nachman, Immigration & Naturalization Law Committee Chair
IN MARCH, 2023, THE H-1B NONIMMIGRANT WORK PERMIT LOTTERY PROGRAM OFFERS US EMPLOYERS TEMPORARY VISAS FOR PROFESSIONAL AND SPECIALTY OCCUPATION WORKERS.
The H-1B visa program allows companies (and other employers) in the US an opportunity to temporarily employ foreign workers in occupations that require the theoretical and practical application of a body of highly-specialized knowledge (where a bachelor’s degree or higher degree, or its equivalent) is required. Employers today have myriad needs for employees with highly-specialized skills.
Often these specialized skills and abilities can be obtained abroad or from International students presently being trained/educated in the US. H-1B specialty occupations may include fields such as architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.
To better understand the H-1B program, the Immigration Law Committee wants to share some information to help guide US employers (and potential H-1B applicants) to navigate the H-1B process.
PART 1 OF 8
ABC’s OF H-1Bs (H-1B FILING SEASON (FOR THE 2022 DEADLINE ON APRIL 1st) GETS INTO FULL-SWING FOR H-1B EMPLOYERS AND PROSPECTIVE H-1B EMPLOYEES.
U.S. Citizenship and Immigration Services on Dec 6, 2019, announced a requirement for
employers seeking to file H-1B cap-subject petitions, including those eligible for the advanced
degree exemption, to first electronically register and pay the associated $10.00 H-1B registration
fee before filing a petition. USCIS will open an initial registration period for a minimum of 14
calendar days each fiscal year.
● During this initial registration period, prospective petitioners or their authorized
representatives must electronically submit a separate registration naming each alien for
whom they seek to file an H-1B cap-subject petition.
● If a sufficient number of registrations are received, USCIS will randomly select the
number of registrations projected as needed to reach the H-1B numerical allocations after
the initial registration period closes and no later than March 31, 2022. Prospective
petitioners with selected registrations will be eligible to file a cap-subject petition only for
the alien named in the registration.
USCIS will not consider a cap-subject petition properly filed unless it is based on a valid
registration selection for the same beneficiary, and the appropriate fiscal year. Additionally,
although petitioners can register multiple aliens during a single online submission, duplicate
registrations for the same beneficiary in the same fiscal year will be discarded.
What does this mean for the immigration practitioners, professionals, and prospective H-1B
employers and employees? To better prepare for the H-1B cap season, this article endeavors to
summarize a few practice pointers that every prospective H-1B employer and employee needs to
know.
Limited Numbers: Not 65,000; There Are Only 58,200 Regular H-1B Visas.
The current annual cap on the H-1B category is 65,000. However, all H-1B nonimmigrant visas
are not subject to this annual cap. Up to 6,800 visas are set aside from the cap of 65,000 during
each fiscal year for the H-1B1 program designed specifically for the Nationals of Chile and
Singapore. Unused numbers in the H-1B1 pool are made available for H-1B use for the next fiscal
year. Thus, in effect, only 58,200 H-1B visas are granted each year with the exception of the 20,000
additional H-1B visas which are reserved for individuals who have received a master’s or higher
degrees from a U.S. college or university. In an upcoming article, we will discuss, in detail,
whether or not every master’s degree from a U.S. academic institution qualifies an individual for
the H-1B master’s cap.
Because of the limited number of H-1B visas, employers should identify individuals who would
need H-1B sponsorship. This will allow sufficient time for petition preparation, including the time
required to file and receive certification of the Labor Condition Application (LCA), Form ETA
9035. Thus, formulating a strategy for an H-1B petition is key to hiring an H-1B employee for the
next USCIS fiscal year which begins on October 1st, 2022.
How Long Will USCIS Accept H-1B Petitions?
With the new H-1B Online registration period starting around early March, if a sufficient number
of registrations are received, USCIS will randomly select the number of registrations projected as
needed to reach the H-1B numerical allocations after the initial registration period closes and no
later than March 31, 2021. USCIS will provide guidance on how to use the registration system and
prepare registrations before opening the registration system for the initial registration period.
Refrain From Submitting Multiple H-1B Registrations For the Same Employee.
An employer may not submit more than one H-1B registration for each prospective employee
during the fiscal year. This limitation also precludes an employer from filing multiple petitions for
different jobs for the same employee but does not preclude related employers (e.g., parent and
subsidiary companies or affiliates) from filing petitions for the same beneficiary. However, the
employer must demonstrate a legitimate business need to do so and, if it fails to meet that burden,
all petitions on behalf of the beneficiary will be denied or revoked.
Both the Proffered Position And the Prospective H-1B Employee Should Qualify.
Not only the prospective employee but also the proffered position should qualify for the H-1B
visa. For a proffered position to qualify for an H-1B visa, it must be a job in a “specialty
occupation”. “Specialty occupation” is an occupation that requires: (1) a theoretical and practical
application of a body of highly specialized knowledge; and (2) attainment of a bachelor’s or higher
degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in
the United States.
The H-1B regulations further require that a position also meet one or more of the following criteria
in order to qualify as a specialty occupation: (1) a baccalaureate or higher degree or its equivalent
is normally the minimum requirement for entry into the particular position; (2) the degree
requirement is common to the industry in parallel positions among similar organizations; (3) the
employer normally requires a degree or its equivalent for the position; (4) the nature of the specific
duties are so specialized and complex that knowledge required to perform the duties is usually
associated with the attainment of a baccalaureate or higher degree.
Therefore, in order to qualify as a “specialty occupation,” a proffered position must: (1) require a
theoretical and practical application of a body of highly-specialized knowledge; (2) require a
bachelor’s degree or higher in the specific specialty (or its equivalent) as a minimum for entry into
the occupation; and (3) meet at least one of the four criteria listed above.
For a prospective employee to qualify for the proffered H-1B position, regulations specify that
he/she should have one of the following: (1) full state licensure to practice in the occupation (if
required); (2) completion of the degree required for the occupation; or (3) progressively
responsible work experience in the specialty equivalent to the completion of such degree. Thus, a
general degree absent specialized experience may be insufficient because there must be a showing
of a degree in a specialized field.
The Filing Fee Depends Upon the Type And Size of H-1B Employer.
Initially, Employer will need to pay the H-1B registration fee in the amount of $10.00. Aside from
the H-1B legal fee, the employer will also need to pay the USCIS filing fees. The amount of the
H-1B filing fee depends on the size and type of employer. All employers are required to pay the
base filing fee for the H-1B petition which is currently $460.00. Additionally, pursuant to the
American Competitiveness and Workforce Improvement Act (ACWIA), employers are required
to pay an additional fee (commonly referred as ACWIA fee) of $750.00 or $1,500.00 unless
exempt under Part B of the H-1B Data Collection and Filing Fee Exemption Supplement.
A sponsoring employer is required to pay a fee of $750.00 if it employs 25 or fewer full-time
equivalent employees. In all other cases, the employers need to pay $1500.00. Employers such as
institutions of higher education; nonprofit organizations or entities related to or affiliated with an
institution of higher education; nonprofit research organization or governmental research
organization, etc. are exempt from paying the ACWIA fee. Additionally, employers seeking initial
approval of an H-1B must pay a $500.00 Fraud Prevention and Detection fee as mandated by the
H-1B Visa Reform Act of 2004.
Additionally, as a result of the FY2020 Omnibus Appropriations Bill passed on December 18th,
2015, the supplemental fee for H-1B petitions are increasing for companies that employ 50 or more
employees in the United States and have more than 50 percent of their U.S. workforce in H-1B,
L-1A, or L-1B nonimmigrant status. Specifically, the previously expired fees H-1B petitions will
increase from $4,000. These supplemental fees must be paid on initial and extension petitions.
Further, either the employer or employee can pay an optional premium processing fee of $1,225.00
to expedite the adjudication of a petition. For the past two years USCIS suspended premium
processing service.
Be Aware of Salary and Benching Costs.
A prospective employer must obtain an approved Labor Condition Application (LCA) from the
U.S. Department of Labor (DOL). The employer attests on the LCA that the H-1B nonimmigrant
worker will be paid wages which are at least the higher of the actual wage paid by the employer to
all other individuals with similar experience and qualifications for the specific employment in
question OR the prevailing wage level for the occupational classification in the area of intended
employment. Thus, not to undercut wages paid to the comparable U.S. workers, Congress has
included a safeguard in the H-1B program. Additionally, and in some cases the employers are
required to pay the costs for the petition process. The wage offered to the prospective H-1B
nonimmigrant may drive whether or not the employer is or is not required to pay for the H-1B visa
process.
Regulations require that employers must begin paying LCA-stated wages when the employee
“makes him/herself available for work” but not later than 30 days after employee’s entry into the
United States (if the prospective H-1B employee is outside the U.S.) or 60 days from the date that
USCIS grants a Change of Status (if the prospective H-1B nonimmigrant is inside the U.S.).
Liability begins to accrue when the person “enters into employment” with the employer. Thus,
even if the worker has not yet “entered into employment,” when the H-1B worker is present in the
U.S. on the date of the approval of the H-1B petition, the employer is required technically to pay
to the worker the required wage beginning 60 days after the date the H-1B worker becomes eligible
to work for the sponsoring employer. The H-1B worker becomes “eligible to work” for the
employer on the date set forth in the approved H-1B petition filed by the employer.
An employer must continue to pay an H-1B employee who is not working due to a nonproductive
status at the direction of the employer (e.g., this is referred to as “benching” because of lack of
work, lack of a permit or license). This regulation applies even if the H-1B employee is receiving
training (either provided by the employer or through some other external arrangement at the
direction of the employer). Thus, the employer is liable for both nonproductive time as well as
productive time once the employee becomes eligible for work. Employers who do not pay nonterminated H-1B employees may face civil penalties. Employers are generally advised to pay an
H- 1B employee his or her salary as listed on the LCA until that employee has been terminated
and the USCIS has been notified of the request to withdraw the H-1B Petition. Furthermore, if the
H-1B employee is terminated prior to the end of the period of admission, the employer should
withdraw the H-1B and may be liable for “the reasonable costs of return transportation” to return
the foreign national home.
Compliance Issues: Posting Notice of the LCA & Maintaining Public Access Files.
Notice of the LCA must be posted, or where there is a union it must be given to the union, before
filing the LCA. The notice may be the LCA itself or 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 notice should
state where complaints may be filed. Notice must be posted at two conspicuous locations at place
of employment where any H-1B nonimmigrant will be employed and the notice shall be posted on
or within 30 days before the date the LCA is filed with the U.S. DOL and shall remain posted for
a total of 10 days.
Notice may be posted in areas where wage and hour and OSHA notices are posted. An employer
may also provide electronic notice to employees in the “occupational classification” for which H1Bs are sought, through any means it normally uses to communicate with employees including a
home page, electronic bulletin board or e-mail. If accomplished through e-mail it needs only to be
sent once; other electronic forms (e.g., home page) should be “posted” for 10 days. 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 (same MSA- Mean Statistical Area) listed on
the LCA.
Additionally, an employer must maintain a group of documents referred to as a Public Access File
(PAF). The PAF must be accessible to interested and aggrieved parties. The PAF must be available
at either the employer’s principal place of business or at the worksite. An interested party is one
that has “notified the DOL of his or her/its interest or concern in the administrator’s
determination.”
The PAF must be available within one day after the LCA is filed with all supporting documentation
including: a copy of the completed LCA; documentation which provides the wage rate to be paid;
a full, clear explanation of the system used to set the “actual wage”; a copy of the documentation
used to establish the prevailing wage; copy of the notice given to the union/employees; and a
summary of the benefits offered to U.S. workers in the same occupational classification, and if
there are differences, a statement as to how differentiation in benefits is made (without divulging
proprietary information).
Demonstrate Sufficient Level of “Control” Over Prospective H-1B Employee(s).
In order for the H-1B petition to be approved by USCIS, a petitioning employer must establish
that an employer-employee relationship exists and will continue to exist throughout the duration
of the requested H-1B validity period. Hiring a person to work in the United States requires more
than merely paying the wage or placing that person on the payroll of the H-1B petitioning
organization. In considering whether or not there is a valid “employer-employee relationship” for
the purposes of H-1B petition adjudication, USCIS must determine if the employer exercises a
sufficient level of “control” over the H-1B employee.
Thus, the prospective H-1B petitioner organization must be able to establish that it has the “right
to control” when, where, and how the prospective H-1B nonimmigrant beneficiary will perform
the professional and specialty occupation job. USCIS considers various factors in making such a
determination (with no one particular factor being decisive).
PART 2
HOW MUCH DO PROSPECTIVE H-1B EMPLOYERS NEED TO PAY TO H-1B EMPLOYEES AND
WHY THE FEDERALLY MANDATED PREVAILING WAGE IS SO IMPORTANT.
Employers who seek to hire an H-1B nonimmigrant in a specialty occupation must first make a
filing with the Department of Labor (DOL) and obtain a Labor Condition Application (LCA).
The LCA, among other things, must specify the number of workers sought, the occupational
classification in which the H-1B will be employed, and the wage rate and conditions under which
the proposed H-1B nonimmigrant will be employed. Additionally, the employer must attest that
it is offering, and will continue to offer, during the period of H-1B employment, the greater of:
(1) the actual wage level paid by the employer to all other individuals with similar experience
and qualifications for the specific employment position in question; OR (2) the prevailing wage
level for the occupational classification in the intended area of employment.
If required to pay the prevailing wage, the wage must be 100% of the prevailing wage. The
prevailing wage is determined for the occupational classification in the area of intended
employment and must be determined as of the time of the filing of the LCA. The regulations
require that the prevailing wage be based upon the best information available. An employer that
fails to pay wages as required is liable for back wages equal to the difference between the
amount that should have been paid and the amount that was actually paid.
The prevailing wage could be determined by a Collective Bargaining Agreement (CBA) if one
exists that pertains to the occupation at the place of intended employment. If the job offer is for
an occupation not covered by a CBA and the employer does not choose to provide a survey or
request the use of a current wage determination in the area, the wage component of the Bureau of
Labor Statistics (BLS), Occupational Employment Statistics (OES) survey should be used to
determine the prevailing wage rate for the prevailing wage in connection with an employer’s job
offer.
Although employers are not required to keep and maintain position descriptions, the regulations
do require an employer to keep and maintain a copy of the documentation the employer used to
establish the ‘prevailing wage’ for the occupation for which the H-1B nonimmigrant is sought or
the underlying individual wage data relied upon to determine the prevailing wage. This
information may have to be made available to the public (if requested) or it may have to be made
available to the DOL upon request or in connection with an enforcement action.
The Federal regulations governing the H-1B nonimmigrant visa require the Administrator, Wage
and Hour Division (WHD), to determine whether an employer has the proper documentation to
support its wage attestation. Where the documentation is nonexistent or insufficient to determine
the prevailing wage, or where the employer has been unable to demonstrate that the prevailing
wage determined by an alternate wage source is in accordance with the regulatory criteria, the
Administrator may contact the Employment and Training Administration (ETA), a part of DOL,
to get the prevailing wage.
Once the ETA provides the prevailing wage, the Administrator is bound to use this determination
as the basis for determining violations and for computing back wages, if such wages are found to
be owed by an H-1B employer. It is important to highlight that the regulation is permissive, and
the ETA’s determination is merely an option that the Administrator can use in its investigation(s).
This option is rarely used by Administrators during investigations. If the employer fails to
support, through proper documentation, how it arrived at the prevailing wage level, the
Administrator can use the employer’s Letter of Support and Form I-129 submitted to the United
States and Citizenship Services (USCIS) in connection with the H-1B petition to determine
whether the employee was appropriately classified at the specific wage level. Thus, the
alternative of not keeping documents used in the determination of appropriate wage level is to
maintain the compatibility between the LCA and H-1B petition.
The nature of the job offer, the area of intended employment, and job duties for workers that are
similarly employed are the relevant factors that are to be used in determining a prevailing wage
rate. In determining the nature of the job offer, the first thing to consider is the requirements of
the employer’s job offer. “Area of intended employment” means the area within normal
commuting distance of the place (address) of intended employment. The regulations define
“similarly employed” as substantially comparable jobs in the occupational category in the area of
intended employment. The required work and education and/or experience for a job impact the
determination of the prevailing wage level.
ETA provides guidance for determining the proper wage level for a position. Level I wage rates
are assigned to job offers for beginning or entry-level employees who have only a basic level of
understanding of the occupation. Level I employees perform routine tasks that often require
limited exercise of judgment. The guidance states that Level II wage rates are assigned to job
offers for qualified employees who have attained, either through education or experience, a good
understanding of the occupation. They perform moderately complex tasks that require limited
judgment.
Level III wage rates are assigned to job offers for experienced employees who have a sound
understanding of the occupation and have attained, either through education or experience,
special skills or knowledge. Frequently, key words in the job title can be used as indicators that
an employer’s job offer is for an experienced worker. Words such as ‘lead’ (lead analyst), ‘senior’
(senior programmer), or ‘head’ (head nurse) would be indicators that a Level III wage should be
considered. The Level IV wage level applies to highly-competent employees who have sufficient
experience in the occupation to plan and conduct work requiring judgment and the independent
evaluation, selection, modification, and application of standard procedures and techniques. Level
IV employees generally hold management and/or supervisory roles and responsibilities.
To better understand how the wage levels apply, consider an example of a job position that
requires either two years or more of experience or a Masters’ degree or higher. Taking into
consideration the above-mentioned guidelines, the employer should use either a Level II or
higher prevailing wage rate. It is important to mention that if an entry level job has additional
requirements or duties beyond that of those ordinarily required; the employer should refrain from
using a Level I prevailing wage.
To summarize, an employer hiring an H-1B worker is required to pay the higher of the actual
wage or the prevailing wage. If paying the prevailing wage, the wage must be 100% of the
prevailing wage. Further, the determination of the prevailing wage depends upon whether the
occupation is covered by CBA or not. If the job offer is for an occupation not covered by a CBA
and the employer does not choose to provide a survey or request use of a current wage
determination in the area, the wage component of the OES survey should be used to determine
the prevailing wage.
The employer is required to keep a copy of the documents used to determine the appropriate
wage level. If the employer fails to provide such documents, the WHD Administrator may either
contact the ETA to get the prevailing wage for the offered position OR refer to the Letter of
Support and/or I-129 Forms submitted to the USCIS with the H-1B petition to make a
determination. Thus, the alternative of not keeping documents used in the determination of
appropriate wage level is to maintain the compatibility between the LCA and the H-1B petition.
In conclusion, a prospective H-1B employer should exercise caution in offering a wage to
prospective H-1B employee that should be the greater of either the actual or prevailing wage. If
paying prevailing wage, the employer should take into consideration the nature of the job offer,
the area of intended employment, and jobs duties for the proffered position in selecting the
appropriate OES wage level, or else they may find themselves facing WHD challenges with
regard to paying back wages.
PART 3
WHAT H-1B EMPLOYERS NEED TO KNOW ABOUT THE LCA TO AVOID POTENTIAL DOL COMPLIANCE PITFALLS.
The H-1B visa program permits a United States employer (“employer”) to temporarily employ
nonimmigrants to fill specialized jobs in the United States. The Immigration and Nationality Act
(the “INA” or the “Act”) requires that an employer pay an H-1B worker the higher of the actual
wage or the local prevailing wage, in order to protect U.S. workers and their wages. Under the Act,
an employer seeking to hire a foreign national in a specialty occupation on an H-1B visa must
receive permission from the Department of Labor (“DOL”) before the foreign national may obtain
an H-1B visa. The Act defines a “specialty occupation” as an occupation requiring the application
of highly-specialized knowledge and the attainment of a bachelor’s degree or higher. The Act
requires an employer seeking permission to employ an H-1B worker to submit and receive an
approved Labor Condition Application (“LCA”) from the DOL.
The employer should be extremely cautious in making attestations on the LCA and complying
with the regulations governing it. Knowingly and willingly furnishing any false information in the
preparation of the LCA and any supporting documentation, OR even aiding, abetting, or
counseling another to do so is a federal offense, punishable by fine or imprisonment up to five (5)
years or both. Other penalties may also apply to the fraud or misuse of the LCA and to the perjury
with respect to the ETA 9035.
Where and When Should Employers Post Notice of the LCA?
The notice requirement of an LCA mandates that employers post notice of their intent to hire
nonimmigrant workers. An H-1B employer must provide notice of the filing of an LCA. When
there is a collective bargaining representative for the occupation in which the H-1B worker will be
employed, the employer must provide such notice to that collective bargaining representative by
way of a copy of the LCA or other document which contains all the required information.
When there is no bargaining representative, the employer must provide such notice in one of the
two following manners. A hard copy notice of the filing of the LCA must be posted in two
conspicuous locations at each place of employment where any H-1B nonimmigrant will be
employed (whether such place of employment is owned or operated by the employer or by some
other person or entity). Alternatively, the electronic notice of the filing of the LCA may be posted
by providing electronic notification to employees in the occupational classification (including both
employees of the H-1B employer and employees of another person or entity which owns or
operates the place of employment) for which H-1B nonimmigrants are sought, at each place of
employment where any H-1B nonimmigrant will be employed. Further, the H-1B employer is
required to post notice on or within 30 days before the date the labor condition application is filed
and should remain posted for a total of 10 days.
In situations involving H-1B workers working at end-site users (third party placements), it is the
duty of an H-1B employers to post the notice of filing of the LCA at the secondary sites. Even if
the H-1B employer makes a good faith attempt to post notice but the end-site user refuses to post
notice at its worksite, the H-1B employer will be found to have substantially and willfully violated
the law. The end-site users have no obligation under the Act to post the notice.
Additionally, the posting requirement mandates that employers note and retain the dates when, and
locations where the notice was posted and to retain a copy of the posted notice.
Additional Obligations for H-1B Dependent Employers and Willful Violators.
An employer is considered H-1B dependent if it has: 25 or fewer full-time equivalent employees
and at least eight (8) H-1B nonimmigrant workers; or 26 – 50 full-time equivalent employees and
at least 13 H-1B nonimmigrant workers; or 51 or more full-time equivalent employees of whom
15 percent or more are H-1B nonimmigrant workers.
An employer whose dependency is not readily apparent or is on the borderline may use the “snapshot” test. The snap-shot test requires a comparison of the total number of all H-1B workers to the
number of the total workforce (including H-1B workers). If a small employer’s snap-shot
calculation shows that the employer is dependent, the employer must then fully calculate its
dependency status. If a large employer’s calculation exceeds 15 percent of its workforce, that
employer must fully calculate its dependency status.
The employer is a willful violator if the employer has been found at any time during the past five
(5) years preceding the date of the application (and after October 20, 1998) to have committed a
willful violation or a misrepresentation of a material fact (two of the Labor Condition Application
(LCA) attestations). A willful violator employer must comply with additional attestations under
any LCA it files within five (5) years of the finding of a willful violation. The only exception is
when an LCA is filed for and used exclusively for exempt H-1B workers.
H-1B dependent employers and/or willful violators must attest that they have not displaced a U.S.
worker at the time of filing an H-1B visa petition. Additionally, H-1B dependent employers and/or
willful violators are required to make displacement inquiries. Displacement inquiry is an obligation
of the H-1B dependent employers and/or willful violators when they desire to place an H-1B
nonimmigrant with another/secondary employer where there are indicia of an employment
relationship. Further, such employers must attest that they have taken good faith steps to recruit
U.S. workers, and that the employer offered the job to any equally or better qualified U.S. worker
who applied for the job for which the H-1B worker is sought.
An Employer’s Duty to Keep Records of Wages Paid to H-1B Employees.
The Act also provides that the LCA, filed by the employer with the DOL, must include a statement
to the effect that the employer is offering to an alien status as an H-1B nonimmigrant, that wages
for H-1B visa holders are at least equal to the actual wage level paid by the employer to all other
individuals with similar experience and qualifications for the specific employment in question, or
the prevailing wage level for the occupational classification in the area of employment, whichever
is higher, based on the best information available at the time of filing the application.
Decades back while addressing a claim brought under the Fair Labor Standards Act, the United
States Supreme Court in a landmark decision held that once an employee shows that he has
performed work and was not properly paid for it, and he produces sufficient evidence of the amount
and extent of work as a matter of just and reasonable inference, the burden shifts to the employer
to produce evidence of the precise amount of work that was performed or evidence to negate the
inference created by the employee’s evidence. The Court explained that it is the employer’s duty
to keep precise records and that such a burden should not fall on the employee and bar the
employee from recovery when such records cannot be produced.
Thus, acting on the sufficient evidence produced by the employee, if the Administrator of the
Wage and Hour Division (WHD) establishes that the employer has failed to properly compensate
the H-1B nonimmigrant worker then the employer bears the burden of establishing the existence
of circumstances that warrant the wages not being paid or benefits not being offered, by a
preponderance of the evidence. Failure to do so would result in the employer being held liable for
the payment of back wages and other financial remedies.
Back Pay Liability Not Subject to One-Year Statute of Limitation.
DOL accepts complaints by aggrieved persons or organizations or through its own initiated
investigation relating to misrepresentation or failure of the employer to meet the conditions stated
in the LCA. An aggrieved employee has 12 months after the latest date on which the alleged
violations were committed to file a complaint; however, this Statute of Limitations does not apply
to an employer’s back pay liability.
If the employer fails to pay an H-1B worker the “required wage,” it can be ordered to pay back
pay or make-up the deficiency. The regulations require the WHD Administrator to determine
whether an employer has the proper documentation to support its wage attestation. The
Administrator may contact the Employment and Training Administration (ETA), a part of DOL,
to get the prevailing wage. The regulation is permissive, and the ETA’s determination is merely
an option that the Administrator can use in its investigation. If the employer fails to support,
through proper documentation, how it arrived at the prevailing wage level, the Administrator can
use the employer’s Letter of Support and I-129 Forms submitted to the United States and
Citizenship Services (USCIS) for the approval of H-1B petition in determining whether the
employee was appropriately classified at the specific wage level.
Civil Money Penalties for H-1B Violations and Debarment for Non-Compliance.
The WHD Administrator may assess Civil Money Penalties (CMPs) not to exceed $5,000 per
violation for a willful violation pertaining to wages. The Administrator may also assess a penalty
not to exceed $1,000 per violation for displacement of U.S. workers, a substantial violation
pertaining to notification, labor condition application specificity, recruitment of U.S. workers, or
a misrepresentation of any material fact on the LCA.
The regulations require the Administrator to consider seven factors for the assessment of CMPs:
(1) Previous history of violation, or violations, by the employer; (2) The number of workers
affected by the violation or violations; (3) The gravity of the violation or violations; (4) Efforts
made by the employer in good faith to comply with the provisions of the law and regulations; (5)
The employer’s explanation of the violation or violations; (6) The employer’s commitment to
future compliance; and (7) The extent to which the employer achieved a financial gain due to the
violation, or the potential financial loss, potential injury or adverse effect with respect to other
parties.
Moreover, the regulations state that an employer that willfully fails to pay wages shall be debarred
for a period of at least 2 years. Further, a substantial failure to provide notice may result in a one
year debarment. Additionally, an H-1B dependent employer’s failure to make displacement
inquiry may result in one-year debarment. Last but not the least, an H-1B employer’s ignorance of
the INA’s requirements or contention that non-compliance was due to an attorney or an employee
will not excuse non-compliance.
The prospect for debarment for an H-1B employer is scary. Debarment is a very strong deterrent
from non-compliance since debarment strikes at the very heart of an H-1B employer’s livelihood.
H-1B employees are necessary to generate the income that allows “body shops” to exist.
PART 4
THE WHYS AND HOWS OF EDUCATION AND/OR EXPERIENCE EVALUATIONS IN THE
CONTEXT OF H-1B VISA PREPARATION AND FILING.
The threshold question for an H-1B nonimmigrant work visa is whether the intending H-1B
nonimmigrant has the equivalence of a U.S. Bachelor’s Degree in a specific field. Most of the
prospective H-1B employees and H-1B employers begin with either of the following two
thoughts: “I would like to work in the U.S. using an H-1B visa, but am not sure if I qualify” or “I
want to hire a foreign worker but not sure if the individual qualifies for an H-1B visa.”
As briefly touched upon in Part I of this VIII Part H-1B series, it is mandatory that not only the
prospective H-1B employee (“H-1B employee” or “Beneficiary”) but both the proffered position
and prospective employee should be qualified to be able to obtain the H-1B nonimmigrant work
visa. Building upon the previous articles, the following will explore the importance of
educational and/or experience equivalency evaluations and explain precautions that an employer
and/or prospective H-1B employee can take in order to avoid a dreaded Request-for-Evidence
(RFE) and/or Notice of Intent To Deny (NOID) the H-1B nonimmigrant petition.
For a proffered H-1B position to qualify for an H-1B visa, it must be in a “Specialty
Occupation”. As previously pointed out, a specialty occupation is one that requires: (1) a
theoretical and practical application of a body of highly specialized knowledge; and (2) the
attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a
minimum for entry into the occupation in the United States. Additionally, with regard to a
prospective H-1B employee, regulations specify that the individual must possess either a United
States baccalaureate (or its equivalent) or higher degree required by the specialty occupation
from an accredited college or university OR hold an unrestricted state license, registration or
certification which authorizes the prospective H-1B employee to fully practice the specialty
occupation. Also, having education, specialized training, and/or progressively responsible
experience that is equivalent to completion of a United States baccalaureate or higher degree in
the specialty occupation, and having recognition of expertise in the specialty through
progressively responsible positions directly related to the specialty could qualify the individual
for an H-1B visa.
Employers should be mindful that if the proposed H-1B nonimmigrant Beneficiary is educated
outside the U.S., the employer will need to determine whether the foreign education is equivalent
to a United States baccalaureate or higher degree.
It is extremely important to understand that just because the degree states that it is a bachelor’s
degree it does not necessarily mean that it is automatically equivalent to a United States
bachelor’s degree. For example, in India (and other countries throughout the world) there are
both three and four-year bachelor’s degrees. Generally (but not always), the three-year degrees
are equivalent to three years of undergraduate coursework at a U.S. institution of higher learning.
Four-year degrees from India can generally be considered to be equivalent of a U.S. bachelor’s
degree.
Also worth highlighting is that a general degree may not qualify an individual for an H-1B visa
because of the absence of specialized experience as there must be a showing of a degree in
“specialized field”. However, in these kinds of situations, when a Beneficiary’s bachelor’s
degree (or its equivalence) is not directly related to the proffered position, it is important to
evaluate the Beneficiary’s academic course work related to the occupation to determine his/her
qualifications.
Consider, for example, the case of a prospective Beneficiary for an H-1B petition for the position
of Accountant who holds a degree in Business Administration. Sometimes the degree may be
even further unrelated to the position being taken by the proposed H-1B Beneficiary.
Generally, a degree in Business Administration may not satisfy the requirement that the
prospective H-1B Beneficiary have a degree in a specialty occupation because of the general,
non-specific nature of the coursework required for this type of degree. The prospective H-1B
Beneficiary may have taken a significant number of accounting courses while obtaining his/her
degree in Business Administration. These accounting courses may be presented as part of the
legal argument that demonstrates that the Business Degree in question may be sufficient to
establish that the alien has the required education in a “specialty” occupation for H- 1B purposes.
Note that an evaluation of education by a credentials evaluation service, which specializes in
evaluating foreign education credential, is “advisory” only. The United States Citizenship and
Immigration Service (USCIS) does not endorse or recommend any particular educational or
experiential evaluator. It is important to note that some evaluators specialize in “educational”
equivalency evaluations. Some evaluation services specialize in “experience” evaluations. In
addition, there are some organizations that are situated to perform a combined “educational and
experience evaluation”. When looking for an appropriate credentials evaluation service provider,
we recommend that you consider their track-record.
When seeking guidance with regard to educational or experience equivalency there are many
services available that can assist the employer or the prospective H-1B employee. It is very
important for H-1B employers and employees to know that equivalency evaluations must come
from a reliable credentials evaluation service which specializes in evaluating foreign education
and/or experiential credentials. If the equivalency evaluation is not issued by a “reliable”
credentials evaluation service, USCIS, in past, has issued RFE questioning the reliability of the
credentials evaluation.
To avoid such RFEs, it is important to make sure that the organization or service that performs
the pure “educational” equivalency evaluation should: (1) Consider formal education only, not
practical experience; (2) State if the collegiate training was post-secondary education, (i.e.,
whether the applicant completed the U.S. equivalent of high school before entering college); (3)
Provide a detailed explanation of the material evaluated rather than a simple concluding
statement; and (4) Provide qualifications and experience of the evaluator providing the opinion.
Even if the prospective H-1B Beneficiary does not hold a bachelor’s degree or its equivalent in a
specific area of study required by the proffered position, she or he may qualify for an H-1B visa.
The prospective H-1B Beneficiary’s education, specialized training, and/or progressively
responsible experience may be recognized as equivalent to a baccalaureate degree (commonly
referred as the “educational and experience evaluation”) provided the H-1B Beneficiary posseses
knowledge, competence, and practice in the specialty occupation that has been determined to be
the equivalence to a baccalaureate or higher degree.
The educational and experience evaluation may be deemed to be equal to a U.S. baccalaureate or
higher degree through one or more of the following factors: (A) An evaluation from an official
who has authority to grant college-level credit for training and/or experience in the specialty at
an accredited college or university which has a program for granting such credit based on an
individual’s training and/or work experience; (B) The results of recognized college-level
equivalency examinations or special credit programs, such as the College Level Examination
Program (CLEP) or Program on Non-collegiate Sponsored Instruction (PONSI); (C) An
evaluation of education by a reliable credentials evaluation service which specializes in
evaluating foreign education credentials; (D) Evidence of certification or registration from a
nationally-recognized professional association or society for the specialty that is known to grant
certification or registration to persons in the occupational specialty who have achieved a certain
level of competence in the specialty; (E) A determination by the USCIS that the equivalent of the
degree required has been acquired through a combination of education, specialized training
and/or work experience and that the Beneficiary has also achieved recognition of expertise in a
specialty occupation as a result of such training and experience.
With regard to the first option (evaluation from an official who has authority to grant college-
level credit) for proving educational and experience evaluation equivalent to a U.S. baccalaureate
or higher degree, USCIS’s Adjudicator’s Field Manual (AFM) clarifies that an official must be
“formally involved with the college or university’s official program for granting credit based on
training and/or experience to have the required authority and expertise to make such
evaluations.”
When proving equivalency through “education and experience”, the equivalency evaluator needs
to be cognizant of the fact that: the Beneficiary’s training and/or work experience includes “a
theoretical and practical application of specialized knowledge” required by the specialty; and, the
claimed experience was gained while working with peers, supervisors, and/or subordinates who
have a degree or equivalent in the specialty.
The USCIS regulations set forth a rule-of-thumb equivalency protocol or methodology called the
“3-to-1 rule”. The 3-to-1 rule states that a bachelor’s degree equivalency can be demonstrated
through a combination of education, specialized training, and/or work experience. Simply put,
three years of specialized training and/or progressively-responsible related work experience can
be used to demonstrate a year of college-level academic training that the prospective H-1B
Beneficiary may lack.
As to the last option (if USCIS itself makes the determination regarding whether the Beneficiary
holds an equivalent of the bachelor’s degree), the Beneficiary needs to show recognition of
expertise in the specialty evidenced by at least one type of documentation such as:
(1) Recognition of expertise in the specialty occupation by at least two recognized authorities in
the same specialty occupation; (2) Membership in a recognized foreign or U.S. association or
society in the specialty occupation; (3) Published material by or about the alien in professional
publications, trade journals, or major newspapers; (4) Licensure or registration to practice the
specialty occupation in a foreign country; or, (5) Achievements which a recognized authority has
determined to be significant contributions to the field of the specialty occupation.
In conclusion, provided that the proffered job qualifies as a specialty occupation, it is imperative
to show that the prospective H-1B Beneficiary holds either a U.S. baccalaureate or higher degree
or its equivalent in the specific field. The equivalency can be demonstrated through the use of an
educational evaluation or through a combined experience and educational evaluation. In some
cases, a pure experience equivalency evaluation may be possible. If the employer submits an
educational equivalency evaluation, it should come from a reliable credentials evaluation service
which specializes in evaluating foreign education credentials. The baccalaureate or higher degree
equivalency through educational and experience evaluation can be proved through one or more
of the above-mentioned five (5) options. Finally, there are additional requirements that the
prospective H-1B Beneficiary needs to satisfy if USCIS makes its own determination about
whether the H-1B candidate holds the equivalent of a U.S. bachelor’s degree or higher
educational degree required by the specialty occupation.