Visa H – Non-Immigrant Employment Visas

Visa H - Non-Immigrant Employment VisasA foreign professional, trainee or a seasonal worker may obtain an H visa for work in the United States. The Immigration and Nationality Act of 1952 (INA) provides the statutory authority for H visa categories, which are (a) H-1B for professionals; (b) H-1C for nurses; (c) H-2A for temporary or seasonal agricultural workers and (d) H-2B for temporary, nonagricultural workers and trainees. In addition, dependents of those applying or who have H visas can apply for H-4 visas, which do not permit employment. The INA imposes annual limits on the number of H visas issued.

H-Visa Process

USCIS‘ processing of an H-visa petition begins when an American employer files a petition for a nonimmigrant worker on Form I-129 and an H Classification Supplement. Prior to filing the petition, the employer must first submit an application with the U.S. Department of Labor (DOL). For example, for H-1B cases, the employer must file a labor condition application (LCA), Form ETA-9035, with DOL, which will then certify this form. For H-2 cases, the employer must file a temporary application for alien employment certification, Form ETA-750 Part A, with DOL. Once it approves the temporary labor certification, the employer must file it with the H-2 petition.

It should be noted that only American employers may petition for foreign workers. A given employer files a petition with USCIS service center having jurisdiction over his place of employment. The employer may request a change of the beneficiary’s nonimmigrant status to H if he is lawfully in the United States on another nonimmigrant status. He can also request that USCIS notify an American consulate of the approval of the visa petition if the alien is or will be outside the United States. In either case, if approved, USCIS service center will issue a Form I-797, Notice of Action, approving the H-1B petition. If the beneficiary is in the United States, and a change or extension of status is granted, USCIS will issue Form I-797-A with a tear-off I-94 card, Arrival/Departure Record, designating the new status. If the beneficiary is outside the United States, USCIS will issue Form I-797-B with a tear-off consular notification card.

An employer may also expedite the processing through the premium processing option available for H visa categories. If he expedites the processing, USCIS must issue the decision within fifteen calendar days or automatically refund the premium processing fee. The employer may request premium processing when filing the H petition or while the application is pending. If, however, USCIS issues a request for evidence, then the fifteen-day period begins from the date the employer responds to the request.

If the beneficiary is outside the United States at the time of the approval, he will use the H approval notice (Form I-797-B) to apply for the visa at an American consulate. Most American consulates will issue a visa upon presentation of an original Form I-797 approval notice along with any other required documents showing eligibility for the appropriate visa classification. At the consulate, the beneficiary must submit a Form DS-156, Nonimmigrant Visa Application, to obtain the visa. In addition, all male visa applicants between the ages of sixteen and forty-five, regardless of nationality, must file Form DS-157, Supplemental Nonimmigrant Visa Application. The consulate will issue a visa for the duration of the petition unless a reciprocity agreement exists, reducing the time period. The beneficiary must enter the United States during the period the visa is valid. Spouses and children of H-visa applicants, who are outside of the United States, must apply for H-4 visa stamps with their Forms DS-156 and the principal’s original Form I-797 or I-94, showing lawful admission to the United States as an H-visa holder. If USCIS denies an H-visa application, the petitioner may appeal the denial to the Justice Department’s Administrative Appeals Office (AAO).

Admission to the United States and Extension of Stay

Once in the United States, the H-visa holder will receive at the port of entry an I-94, with the period of admission stated thereon. If the H beneficiary is already in the United States, USCIS will issue an I-94 as part of I-797-A approval notice, showing that the beneficiary is allowed to work in the United States. If the beneficiary departs the United States, he will need to apply for an H-visa stamp while abroad in order to return to the United States.

To extend the validity of the H visa, the employer files a Form I-129 and an H Supplement, accompanied by the petitioner’s statement showing that the basis for the classification continues to exist. The employer must also prepare an LCA. Derivative beneficiaries must file requests for extension on Form I-539. If the petitioner requested the extension before the beneficiary’s status expiration, the alien worker may continue employment with the same employer for up to 240 days while awaiting a decision from USCIS. Portability rules established by the American Competitiveness in the 21st Century Act (AC21) allow certain beneficiaries (who have previously had an H-1B visa or H-1B status) to “port”, that is, begin working for a new employer as soon as the new employer files the H-1B petition with USCIS, as described in AC21 §105(amending INA §214(m)(1), re-designated as Subsection (n)(1). The beneficiary is not subject to the 240-day limitation when changing employers under AC21′s portability provisions. Pursuant to 8 CFR 214.2(h)(10)(iii), the petitioner may not appeal a denial of his request for an extension of stay.

H-1B WORKERS IN SPECIALTY OCCUPATIONS

As consideration for issuance of an H-1B visa, USCIS considers whether the position is a specialty occupation and the beneficiary meets its requirements. There are annual limits on how many H-1B petitions may be granted. These limitations change often however.

Specialty Occupations INA 214(i)(1) defines a specialty occupation as one requiring (a) theoretical and practical application of a body of highly specialized knowledge, and (b) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation. To establish that a job qualifies as a specialty occupation, in accordance with 8 CFR § 214.2(h) (4) (iii) (A), one or more of the following criteria must be met:

  1. A bachelor’s or higher degree or its equivalent is the minimum entry requirement for the position;
  2. The degree requirement is common to the industry, or the position is so complex or unique that it can be performed by an individual with a degree; and
  3. The employer normally requires a degree or its equivalent for the position.

The alien must also have a degree in a specialty field related to the position. The degree must have provided the knowledge and skills necessary to perform a specific job. Based on this, USCIS will deny an H-1B petition citing a degree in liberal arts. USCIS considers degrees in computer science, biology, math, accounting and software engineering to be suitable for specialty occupations. Pursuant to INA § 214(i) (2) and 8 CFR § 214.2(h) (4) (iii) (C), to qualify for the specialty occupation, the alien must have:

  • Full licensure if required in the state;
  • Completion of an American bachelor’s or higher degree (or its foreign equivalent) in the specific specialty or related field; or
  • Education, training or experience in the specialty equivalent to the completion of such degree.

License Requirement. A specialty worker must have a license or a temporary permit if it is required for the practice of a particular specialty occupation. In some cases, there might be an issue whether the specific duties described in an H-1B petition require licensure. For example, an attorney practicing litigation law is required to obtain a state license, whereas one conducting research for a dissertation may not. Therefore, the license requirement is not determinative of whether the position is a specialty occupation. An unlicensed accountant who works under the supervision of a licensed accountant is eligible to receive H-1B status. The applicant’s degree, not the license, is determinative of the specialty occupation.

Degree Requirement. While most H-1B applicants must have bachelor’s or higher degrees, a research geneticist position, for example, may require an advanced degree as a minimum requirement. Further, the major or concentration of the bachelor’s degree program usually identifies the specialty. Sometimes, a specialty occupation may combine several disciplines. For example, a software engineer specialty may combine degrees in computer science and math.

Foreign Degree. Pursuant to 8 CFR § 214.2(h) (iii) (C) (2), USCIS will accept a degree from a foreign university if it has been evaluated as equal to an American one. An independent evaluator may determine whether a foreign degree is equivalent to that earned at an American university or college.

Degree Equivalency. As stated in § 214(i)(2)(C)(ii), INA permits a beneficiary to qualify for a specialty occupation based on experience that is equivalent to a bachelor’s degree as long as he demonstrates that his expertise was gained through “progressively responsible positions relating to the specialty.” According to 8 CFR § 214.2(h) (4) (iii) (D), the petitioning employer may establish equivalency through:

  1. an evaluation by a college official authorized to grant credit for training or experience in the specialty;
  2. the results of college-level equivalency examinations or special credit programs; or
  3. certification or registration from nationally recognized professional associations for the specialty.

In addition, according to 8 CFR § 214.2(h)(4)(iii)(D), USCIS may determine equivalency through the application of the “three-for-one” rule, by which three years of specialized training or work experience may be substituted for each year of college-level education that the beneficiary lacks. On the other hand, the regulations state that demonstrating equivalence to an advanced or master’s degree requires the possession of a bachelor’s degree followed by at least five years of experience in the specialty. But, if the specialty requires a doctorate degree, the applicant must hold a doctorate or its foreign equivalent and three-for-one rule will not apply to the case.

Physicians. Foreign-trained physicians may now seek H-1B status and engage in patient care as long as they (a) pass the Federation Licensing Examination (FLEX), or its equivalent; and (b) establish competency in written and spoken English. In the alternative, the physician may be a graduate of an accredited medical school. The Department of Health and Human Services (HHS) announced that two examinations are considered equivalent to the FLEX: (1) Steps 1, 2 and 3 of the U.S. Medical Licensing Examination (USMLE); and (2) Parts I, II and III of the National Board of Medical Examiners (NBME) certifying examination. FLEX and NBME have been phased out, leaving the USMLE as the only examination currently designated by HHS. Note that the exam requirements do not apply to a physician of national or international renown.

Labor Condition Application (LCA)

An employer must seek an LCA for the approval of an H-1B petition. The LCA contains such information about the proposed H-1B employment as rate of pay, period of employment and work location. It also requires the employer to attest to certain conditions of employment. The employer must document compliance with LCA requirements in a publicly accessible file. Pursuant to INA § 212(n) (1), DOL will certify the LCA after having reviewed the application “for completeness and obvious inaccuracies” and, where sufficient, shall provide immediate certification. The petitioner may file a single LCA for multiple H-1B employees and locations, but each LCA is limited to one occupation with specified job duties. DoL requires petitioners to apply for the LCA on its Web site.

Employer Attestations. The LCA requires the petitioning employer to certify that he:

  1. pays or will pay the H-1B employee wages that are at least: (a) the actual wages paid to others with similar experience and qualifications for the specific job at the place of proposed employment; or (b) the “prevailing wage” for the occupational classification in the area (whichever is greater, based on the best information at the time of filing);
  2. will provide working conditions for the H-1B employee that will not adversely affect those of workers similarly employed in the area;
  3. has no knowledge of a strike or labor dispute at the place of employment;
  4. has (a) provided notice of this filing to the bargaining representative (if any); or (b) if there is no such bargaining representative, posted notice of the filing in at least two conspicuous locations at the place of employment for a period of ten days.

Prevailing and Actual Wage. This attestation obligates the employer to pay the H-1B employee the prevailing or actual wage, whichever is higher. In determining the prevailing wage, petitioner may rely on the surveys provided by local and state workforce agencies for the occupations under application or on any other legitimate source of wage data. The petitioner must list the specific source used for the wage determination. Employers are required to pay 100% of the prevailing wage with the sole exception relating to research positions in the not-for-profit sector. To determine the actual wage, the employer must identify other employees who are similarly employed possessing similar experience and qualifications. In addition, the employer must prepare an internal report explaining the business factors used to set the actual wage. An H-1B employer shall provide public access to the wage-determination report.

In addition to the wage attestation, the employer is required to provide the H-1B employee with the same benefits as those offered to similarly situated American workers. An H-1B employer must also public access to the benefits plan.

Strike. The employer must attest that there is no strike, lockout or work stoppage on the date the employer files the LCA. In addition, the employer agrees to notify the Employment and Training Administration (ETA) within three days if any such labor dispute occurs. The employer also agrees not to use the LCA to place any H-1B worker until the ETA determines that the labor disruption has ceased.

Posting. The final attestation is the notice or posting requirement. An employer must provide notice of the filing of the LCA to the collective-bargaining representative. If, however, there is no such representative, the employer must post notices of having filed the LCA at each place of H-1B employment. The notice shall state:

  • the number of H-1B non-immigrants sought;
  • the occupational classification in which the H-1B nonimmigrants will be employed;
  • the wage or wage range offered;
  • the period of employment during which, and the location(s) at which, the H-1B nonimmigrants will be employed; and
  • that the LCA is available for public inspection.

In the notice, the employer must state that complaints regarding the LCA can be filed with any office of the Wage and Hour Division of DOL. The notice must be sufficient in size and visibility and shall be posted in two or more conspicuous places, which would include, but not be limited to, locations in the immediate proximity of wage-and-hour or occupational safety and health notices. The hard-copy notices must be posted within thirty days of the filing of the LCA and remain posted for a total of ten days.

Alternatively, the employer may satisfy the notice requirement by sending a one-time electronic notice. The employer may either post such notice on an electronic bulletin board or intranet, subject to the same time requirements as those of the hard-copy postings, or provide direct, individual notice, such as by sending a one-time, electronic mail message to affected employees.

If the employer places the H-1B employee at a new worksite not contemplated at the time the original LCA was filed, he is required to repost either by hard-copy notice or electronically. However, the employer may be required to obtain approval of a new LCA and H-1B petition if the H-1B employee continues to work at the new place of employment in excess of the time allowed by the law.

The LCA also includes the employer’s promise that he will give the H-1B employee a copy of the certified LCA (Form ETA-9035) and, if requested, the LCA cover pages, no later than the day the H-1B employee reports to work.

Public Disclosure/Publicly accessible File. The employer shall provide public access to the copy of the LCA and supporting documentation regarding the H-1B worker and other similarly situated employees. The publicly accessible file must include:

  1. The LCA (with employer’s original signature and cover pages);
  2. H-1B’s wage documentation (offer of employment);
  3. Explanation of the system used to set the actual wage;
  4. Copy of prevailing wage determination from State Workforce Agency or description of survey or other source used;
  5. Copy of the notice to the union (if applicable) or postings;
  6. Summary of the benefits plan offered to the H-1B employee showing that it is the same as that offered to similarly employed American workers;
  7. H-1B employee’s elections, if any; and
  8. Copy of the certified LCA signed by the H-1B employee attesting to having received it.

In addition, the employer should supplement the publicly accessible file if there is:

  1. Documentation regarding any adjustment to the wage (e.g., annual raise or cost of living increase);
  2. A non-disruptive change in its legal structure, and he does not choose to file an amended petition for each H-1B worker. A sworn statement is required from the new employer acknowledging all obligations under the LCA filed by the previous employer and a list of the affected LCAs;
  3. Evidence of recruitment of American workers when the employer is an H-1B dependent or willful violator;
  4. A list of the exempt employees when the employer is an H-1B dependent or a willful violator but indicates that the LCA is for exempt non-immigrants.

H-1B Dependent Employer. As part of the LCA process, every H-1B employer must attest as to whether he is an H-1B dependent, defined as one who has:

  • twenty-five or fewer full-time equivalent employees but more than seven H-1B employees, or
  • Between twenty-six and fifty full-time equivalent employees as well as more than twelve H-1B employees, or
  • At least fifty-one full-time equivalent employees and fifteen percent H-1B employees.

The regulations set forth the specific rules for calculating H-1B dependency and the documents used in this calculation. If the employer meets the test above, then he is not required to retain documentation of the full-dependency calculation.

Exempt H-1B Nonimmigrants. Title 8 USC § 1182(n) (3) (B) provides for two categories of H-1B nonimmigrants exempt from the dependency requirements: 1) those who receive annual wages, including cash bonuses and similar compensation, of $60,000 or more; and 2) those who have attained a master’s degree or higher (or its equivalent) in a specialty related to the intended employment. An H-1B employer’s attestation requirements are different for exempt and non-exempt H-1B nonimmigrants. Exempt H-1B nonimmigrants must be taken into account in computing dependency. However, if the prospective H-1B is exempt, the employer need not make the additional attestations on the LCA, even if the employer is an H-1B dependent. The employer must, however, retain a list of exempt H-1B employees in a publicly accessible file.

The definition of “employer” includes any group treated as a single employer under §414(b), (c), (m) and (o) of the Internal Revenue Code of 1986 (IRC). These subsections treat as a single employer (for purposes of qualification of pension and profit sharing plans) legally separate entities, whether incorporated or not, under common control and ownership or affiliated service groups.

Additional Attestations for H-1B Dependent Employers or Willful Violators. A willful violator is an employer who has committed a volitional failure or misrepresentation in LCA compliance in the previous five years. Even if an employer is a willful violator, the employer is not required to make these additional attestations on an LCA for an exempt H-1B employee.

Employers who are H-1B dependent or willful violators must make two additional attestations on the LCA. These are attestations of 1) no displacement of protected American workers and 2) prior recruitment. Employers subject to these attestations must also retain documentation of these additional conditions in the publicly accessible file. Protected classes of American workers include American citizens and nationals, permanent residents, refugees, asylees and legal immigrants.

Attestation of No Displacement. Employers who are H-1B dependent or willful violators must not have displaced American workers for a period of ninety days prior to filing the LCA to ninety days after having filed the visa petition pursuant to 8 USC § 1182(n)(1)(E). Displacement takes place when an employer removes or “lays off” an American worker from a job essentially equivalent to that offered to the H-1B nonimmigrant. To be essentially equivalent, the job must involve, to a great extent, the same responsibilities, be held by an American worker with substantially equivalent qualifications and be in the same area of employment. The same area of employment includes locations within a metropolitan statistical area or normal commuting distance.

A layoff means a termination of a worker for reasons other than inadequate performance, violation of work place rules, voluntary departure or retirement, expiration of a grant or contract save one created to circumvent the layoff provision. A layoff, however, does not result when the employer offers the worker a similar position at equivalent or higher terms in lieu of termination.

Attestation of Prior Recruitment. An H-1B dependent employer or willful violator must also attest to prior, good-faith efforts to recruit American workers for the jobs for which H-1B workers are sought. The recruitment must have been at prevailing wages, and the employer must extend job offers to any American applicants equally or better qualified than the H-1B nonimmigrant using normal, customary, legitimate, relevant and nondiscriminatory selection criteria. The recruitment must be both internal and external and include at least some active recruitment. An employer who is H-1B dependent or a willful violator must retain documentation of both the no-displacement and prior-recruitment attestations in a publicly accessible file. Please note, though, that the attestation of prior recruitment is not required if the H-1B nonimmigrant is exempt.

An employer must pay a fine of $1,000 and is prohibited for one year from filing immigrant and nonimmigrant visa petitions for failure to meet the requirements for strike or layoff attestation. In addition, this fine applies to substantial failure to have met the working-condition, displacement or posting or recruitment attestations as well as to misrepresentation of a material fact in the LCA per INA § 212(n)(2)(C)(i)(I) and (II).

An employer must pay a fine of $5,000 and is prohibited from filing immigrant and nonimmigrant petitions for willful failure to meet any attestation or for misrepresentation of a material fact in the LCA per INA § 212(n) (2) (C) (ii) (I) and (II).

Further, in accordance with INA § 212(n)(2)(C)(iii)(I) and (2), an employer must pay a fine of $35,000 and is prohibited from employing H-1B workers for three years for willful failure to have met an attestation condition or willful misrepresentation of a material fact in an LCA if, in the course this failure or misrepresentation, an American worker is displaced during the period of ninety days before and ninety days after having filed the H-1B visa petition. In addition to fines and prohibition, willful violators may be randomly investigated for five years.

Additional Violations at Risk of Penalties. A petitioner will be penalized if he retaliates against a whistle blower who discloses information to the employer or to any other person who, the employee reasonably believes, violates INA §212(n). Also protected by the whistle-blower qui tam provision are current and former employees as well as applicants who cooperate or seek to cooperate in a proceeding or investigation concerning the employer’s compliance with INA §212(n). The employer violates the whistle-blower provision by intimidating, threatening, restraining, coercing, blacklisting, discharging or, in any other manner, discriminating against a whistle blower. Violators of these provisions may be fined up to $5,000 and prohibited from filing petitions for two years. An H-1B nonimmigrant whistle blower will receive an opportunity to continue working in the United States following retaliation by the employer.

In addition, the law requires the employer to pay a termination penalty to the H-1B employee if the employer requires an H-1B employee who leaves his employment early to pay the employer money. Further, USCIS prohibits unpaid bench time (employer mandated unpaid time off work) unless it was requested by the H-1B employee for personal reasons (maternity, illness, etc.). Further, an employer is liable if he places a nonexempt H-1B worker with another employer, and that subsequent employer displaces an American worker during the ninety day period after having filed the LCA. If the employer fails to offer a job to a qualified American worker or misrepresents this attestation as required by INA §212(n)(1)(G), the employer may be fined $1,000 or $5,000 per violation and disbarred for one or two years, depending on its severity and nature.

Roving Employees. Roving H-1B employees are those who work at several work locations. If an H-1B employee travels to a new location for training or development activity, a new LCA is not required. If the roving H-1B employee goes to a new site where he intends to work for an extended period of time, then the employer must either request a new LCA or repost the old one and adhere to the short-term placement rules permitting an H-1B employee to travel up to sixty days per year to another place of employment.

Section 20 CFR § 655.17 provides for a new type of H-1B employee whose work is “peripatetic” in nature, in that the normal duties of the occupation require frequent travel. Peripatetic workers may travel constantly but may not spend more than five days in one place. For such workers, a new location is not considered a new worksite and, therefore, does not require a new LCA. Likewise, H-1B workers who travel occasionally on a casual, short-term basis (not exceeding ten days) to a new location are not considered to have a new worksite with new LCA requirements. Employers are required to pay their employees’ travel expenses for each day they travel, including weekends.

Termination of H-1B Employment

The employer is liable for reasonable transportation costs if he dismisses an H-1B worker prior to the completion of his stay. However, he is not liable for the transportation costs if the H-1B worker voluntary leaves his employment.

H-1B Documentation To obtain an H-1B petition, the employer must file the following documents:

  1. Form I-129, Petition for Alien Worker;
  2. Form I-129, Supplement H;
  3. Form I-120, H-1B Data Collection Supplement;
  4. Form ETA-9035 or ETA-9035E, Certified LCA;
  5. Form I-539 (if dependents) and copies of dependents’ immigration documents;
  6. Petitioner’s letter describing the specialty occupation and how the beneficiary meets the requirements;
  7. Copies of the beneficiary’s educational credentials (degrees, transcripts, training certificates, and letters of experience if lacking a bachelor’s degree);
  8. Credential evaluation, if the degree is from a non-American university;
  9. Proof of beneficiary’s current immigration status if in the United States or copy of passport if outside the country;
  10. Documentation on the employer (annual report, proof of ability to pay the wage, business licenses, tax returns, etc.); and
  11. Employer fee (unless exempt), filing fee, fraud fee and premium processing fee, if any.

Dual Intent Dual intent relates to the desire to immigrate in addition to work in the United States. H1-B beneficiaries may intend to work temporarily as a nonimmigrant but also seek permanent-resident status. Therefore, USCIS may not deny an H-1B applicant a visa merely based on his intent to immigrate to the United States.

Portability H-1B petitioners may transfer or “port” to a new employment as soon as the new H-1B petition if filed. This requirement applies to any H-1B worker who (1) has been lawfully admitted the United States, (2), subsequent to such admission, has not worked without permission; and (3) has a non-frivolous petition filed by an employer for new employment prior to the expiration of his authorized stay.

Period of Admission An H-1B worker may stay in the United States for a total of six years, with extensions of up to three years. He is eligible for a new six-year period after having lived outside the country for at least one year. The beneficiary cannot count time in another status while living in the United States against this one-year period. If the H-1B worker spends some time outside the United States, he may recapture all this time so that it does not count towards the six-year period.

One-year Extensions for H-1B workers with Pending Labor Certifications. The 21st Century Department of Justice Appropriations Authorization Act allows USCIS to approve extensions of H-1B status in one-year increments for H-1B workers with pending labor certifications prior to the end of their fifth year which have been pending more than one year.

H-2 Temporary or Seasonal, Agricultural Workers

Section 8 CFR §214.2(h) (5) (i) governs the admission of H-2A temporary or seasonal, agricultural workers. In addition, Section 20 CFR, Part 655, contains extensive regulations from the Department of Labor governing admission of temporary, agricultural workers. Section 22 CFR § 41.53 and additional clarifications stated in 9 U.S. Department of State, Foreign Affairs Manual, supplement the rules for the admission of temporary, agricultural workers to the United States.

H-2B Temporary Nonagricultural Workers

To receive an H-2B temporary nonagricultural worker visa, the petitioning employer must demonstrate that the job itself and the employer’s need for the specific beneficiary are temporary. Section 8 CFR § 214.2(h) (6) (i) states that an “H-2B nonagricultural temporary worker is an alien who is coming temporarily to the United States to perform temporary services or labor, is not displacing U.S. workers capable of performing such services or labor, and who is capable of performing such services or labor, and whose employment is not adversely affecting the wages and working conditions of U.S. workers.” Section 8 CFR § 214.2(h)(6)(ii) (A) defines temporary services as “any job in which the petitioner’s need for the duties to be performed by the employee is temporary, whether or not the underlying job can be described as permanent or temporary.” The petitioner’s need (which must generally be one year or less) can be a one-time occurrence, seasonal, peak load or intermittent.

One-time Occurrence. Pursuant to 8 CFR § 214.2(h) (6) (ii) (B) (1), the employer needs to show that he has not employed, and will not need, workers, or has an employment situation that is otherwise permanent, but an event of short duration has created the need for a temporary worker.

Seasonal Need. According to 8 CFR § 214.2(h)(6)(ii)(B)(2), the employer needs to show that the services or labor are traditionally tied to a season or by an event or pattern. An example of such a need is diving instructors hired for the summer. The employer must specify the period(s) of time during which he does not need the labor. USCIS does not consider employment to be seasonal if the period during which the labor is not needed is unpredictable, subject to change or considered vacation time for the petitioner’s employees.

Peak-load Need. Pursuant to 8 CFR § 214.2(h) (6) (ii) (B) (3), the employer must show that he regularly employs permanent workers and needs to supplement them on a temporary basis due to seasonal or short-term demand. Additionally, the temporary additions to staff must not become a part of his regular operations.

Intermittent Need. In accordance with to 8 CFR § 214.2(h) (6) (ii) (B) (4), the employer must show that he regularly hires permanent workers and needs to supplement his permanent staff on a temporary basis due to a seasonal or short-term demand. Additionally, the temporary additions to the staff will not become a part of the petitioner’s regular operations.

Required Documentation. An employer first needs to obtain a temporary labor certification, Form ETA-750, from DoL, which allows him to hire temporary or seasonal workers. Before USCIS can approve a petition for such workers, the employer must file an application with DOL stating that there are not sufficient workers who are able, willing, qualified and available, and that the employment of foreign nationals will not adversely affect the wages and working conditions of similarly employed American workers. The petitioner may not appeal DOL’s denial of the certification.

The employer shall file the certification and I-129 with USCIS. USCIS may, however, deny an H-2B visa petition even if there is a certification from DOL. Likewise, an H-2B petition can be granted despite a negative recommendation from DOL.

Form I-129 must be accompanied by:

  1. an approved LCA or a notice that such a certification cannot be made;
  2. countervailing evidence to rebut any notice by the Secretary of Labor that a certification cannot be made;
  3. documentation that the beneficiary qualifies for the job as specified in the application for labor certification; and
  4. a statement describing in detail the temporary situation or conditions that make it necessary to bring the beneficiary to the United States and whether the need is a one-time occurrence, seasonal, peak load or intermittent. If the need is seasonal, peak load or intermittent, the statement must indicate whether the situation or conditions are expected to be recurring.

USCIS may grant two one-year extensions for to H-2B temporary workers. To this end, the petitioning employer must file a new I-129 and request another labor certification. If he dismisses without cause an H-2B beneficiary before the end of his approved stay, the employer must pay the transportation costs to return the worker to his home country.

In order to receive USCIS’ approval, the employer must demonstrate that he will pay the H-2B worker the prevailing wage and provide conditions that are typical to workers similarly employed in the area of intended employment. In addition, the employer must show that there is no strike, lockout or work stoppage in the occupational classification at the place of employment. The employer must also demonstrate that it has complied with the recruitment requirements and will comply with all federal, state and local laws related to the job opportunity.

If DOL selects an H-2B petition for audit, the employer must respond within thirty days of date of the notice. If DoL finds that an employer has misrepresented a material fact in the petition, it may disbar the employer from the H-2B program for a maximum of three years.

Period of Admission and No Dual Intent A temporary worker enters the United Sates for the maximum period of three years. After having spent three years in the United States, a beneficiary may not seek an extension, change of status or be readmitted under H nonimmigrant classification unless such beneficiary “has resided and been physically present outside the United States for the immediately prior six months” as required by 8 CFR § 214.2(h)(13)(iv). The concept of duel intent (intent to remain in the United States indefinitely) does not apply to H-2B visa status.

H-3 TEMPORARY TRAINEES

Section 8 CFR § 214.2(h)(7)(iv) defines an H-3 trainee as a nonimmigrant who seeks to enter the United States at the invitation of an organization or individual for the purpose of receiving training in areas such as, but not limited to, agriculture, commerce, communications, finance, government or transportation. Please note that physicians do not fall in the H-3 category in accordance with 8 CFR § 214.2(h)(7)(i). Pursuant to INA § 101(a) (15) (H) (iii), an H-3 program is not “designed primarily to provide productive employment,” but it permits some productive employment if it is incidental but necessary to the training.

Evidentiary Requirements To obtain an H-3 status, the trainee must demonstrate to USCIS the following:

  1. The proposed training is not available in the beneficiary’s own country;
  2. As a trainee, the beneficiary will not be placed within the normal operations of the business in which Americans and permanent-resident workers are regularly employed;
  3. The beneficiary will not engage in productive employment unless it is incidental but necessary to the training; and
  4. The training will benefit the trainee in pursuing a career outside the United States.

Nature of the Training Program The petition for a trainee must describe in detail the type of training and supervision the trainee will receive, as well as set forth the structure of the training program. The petition must discuss the amount of time the beneficiary will spend in productive employment and provide the number of hours of classroom instruction and on-the-job training. The petitioner should describe the trainee’s career abroad and why he cannot receive such training in his home country. Finally, the trainee shall explain the source of any remuneration he will receive and the trainer’s benefits for providing the training.

USCIS will not approve a training program if it has no fixed schedule, objectives or means of evaluation, or is incompatible with the nature of the petitioner’s business. Furthermore, USCIS will not approve a training program if the beneficiary already had substantial training and expertise in the proposed field of training. Likewise, it will deny the petition if the program is in the field in which it is unlikely that the knowledge or skill will be used outside the United States or results in productive employment beyond that which is incidental but necessary to the training. Similarly, programs designed to recruit and train beneficiaries ultimately for operations in the United States are not acceptable. In the past, USCIS denied applications in which the petitioner had no facilities and staff to provide specified training, or when the program was designed to extend period of practical training for a student who already had similar training.

Productive Employment If employer offers trainee a substantial salary and a long on-the-job training program, USCIS will determine that the petitioner and trainee do not meet the requirements for an H-3 trainee.

Filing, Period of Admission and Extensions An American employer seeking H-3 classification for a prospective trainee must file Form I-129 and supporting documentation with the appropriate USCIS service center. USCIS may approve the petition for a validity period of a maximum of two years. An H-3 trainee who has spent two years in the United States as an H nonimmigrant may not seek extension, change status or readmission to the United States in this status unless he has been present outside the United States for the immediately prior six months.

The doctrine of dual intent does not apply to H-3 beneficiaries. Thus, the approval of an LCA for, and the filing of an immigrant petition by, the same employer training the trainee shall be a reason, in and of itself, to deny a trainee’s application for extension of stay.

H-4 DEPENDENTS

Spouses and minor children of H-1B, H-2A, H-2B and H-3 nonimmigrants may be admitted as H-4 nonimmigrants. H-4 dependents are ineligible for employment authorization. If the dependents are outside the United States, a separate petition on their behalf need not be filed with USCIS. However, in order to obtain an H-4 visa, each dependent must submit to an American consulate an individual nonimmigrant visa application, Form DS-156, and documents showing a familial relationship to the H-visa holder.

If the principal beneficiary is applying for H status through a change or extension of status, then dependent, familial members who are in the United States may request H-4 status on Form I-539. Filing errors are very common during the change-of-status process. Often, derivative beneficiaries will require a visa revalidation or visa re-issuance while in the United States, when, in fact, they must file a change-of-status application on Form I-539. DOS no longer revalidates the visas, which means that, if dependents, either spouses or children over eighteen years of age, do not leave the United States within 180 days of the expiration date of their H-4 status, then they are subject to a three-year re-entry bar, which increases to ten years if the dependent overstays beyond one year of the expiration date on their I-94 cards. Consultation with an experienced immigration attorney is crucial during this process to avoid complications related to the expiration of status.