H Visas

H Visas are governed by the following statutes: INA §101(a)(15)(H), 8 USC §1101(a)(15)(H). There are six different active categories of H Visas:
1) H-1B: Specialty Occupation
2) H-1B1: Fast Track H-1B
3) H-2A: Temporary agricultural workers
4) H-2B: Skilled and unskilled workers provided United States Citizens and Legal Permanent Residents are unavailable to fill the job
5) H-3: Trainees
6) H-4: Accompanying family members [spouse/children]

This visa is designed for persons who are in a specialty occupation, fashion models of distinguished merit and ability, and occupations related to Department of Defense research and development. These visas are temporary and may be applied in conjunction with other visa applications. Petitioner (employer) must obtain a certification from the Department of Labor that it has filed a Labor Condition Application in the occupation speciality. 8 CFR §214.2(h)(4)(i)(B)(1).

The employer has 30 days from entry (or 60 from employee’s change of status if already in U.S.) to start paying petition-stated wages, but must begin when the employee makes him or herself available for work. Petition process fees are paid by the employer. Wages paid must be 100% of the prevailing wage (can be obtained from the Department of Labor or employer may attest and prove; resource flcdatacenter.com) and employer cannot sideline an H-1B due to lack of work. Although an employer may not penalize an H-1B for terminating employment early, employer may require H-1B to sign a liquidated damages clause (if valid under state law). If employer terminates employment prior to end of admission period, then employer is liable for “the reasonable costs of return transportation of the alien abroad.” INA §214(c)(5)(A), 8 USC §1184(c)(5)(A).

A speciality occupation is defined as requiring theoretical and practical application of highly specialized knowledge, and attainment of bachelor’s degree (or its equivalent) or higher. Speciality occupation includes the definition of a professional, including: accountants, acupuncturists, chiropractors, computer programmers, dietician, electronics specialist, fashion designer, film/video director, general manager, graphic designed, health services manager, hotel management, human resources manager, industrial manager, commercial interior designer, investment analyst, journalist, librarian, senior market analyst, medical technologist, minister, pharmacist, purchasing agent, rehabilitation coordinator, showroom manager, social worker, software design engineer, teacher, webographer and others.

An LCA (electronic Form 9035E) must be obtained before an H-1B petition can be filed. An LCA has special attestation requirements that the employer has made good faith efforts to recruit U.S. workers. An employers Federal Employer Identification Number (FEIN) must be approved by the Office of Foreign Labor Certification before an LCA will be issued.

An H1-B “dependent employer” holds the following characteristics: 1) has 25 or fewer full time equivalent employees and employs more than 7 H-1B’s; 2) has between 26 and 50 full time equivalent employees and employs more than 12 H-1B; 3) employs 51 or more full time equivalent employees and employs at least 15% H1-B’s.

H-1B procedures are governed by 8 CFR §214.2(h)2). Here are the basic procedures:
1) Employer (or Agent) filed form I-129;
2) Fees paid to Department of Homeland Security: a) I-129 petition fee; b) $1,500 ($750 if employer has less than 25 full time equivalent employees). INA §214(c)(9); c) $500 fraud prevention and detection fee. INA §214(c)(12). d) Employers with 50 or more employees and more than 50% of the employees are H-1B’s (or L-1’s), then employer must pay an additional $4,000 for each initial application or extension.
3) Petition filed with Vermont or California Service Center (see instructions on Form I-129).
4) A copy of the certified LCA must be submitted.
5) Effective date will be date that work starts. Petition may be submitted up to 6 months before work begins. 8 CFR §214.2(h)(9)(i)(B).
6) Documentation: photocopies of degrees, evaluations, licenses.

This special category was born out of the U.S. Chile Free Trade Agreement and the U.S. Singapore Free Trade Agreement. Some important distinctions between H-1B1 and H-1B include, for H-1B1:
1) No I-129 petition required. Application submitted directly to U.S. consulate. The $500 fraud prevention and detection is not required;
2) Licensure not a prerequisite (but must still comply with state license requirements);
3) LCA must still be filed with appropriate designation (H-1B1-Chile or H1-B1-Singapore);
4) No 6 year maximum cap.

For workers performing agricultural labor or services of a temporary or seasonal nature. Agricultural labor services encompasses “handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or market or to a carrier for transportation to marketing, in its unmanufactured state” so long as the operator of the farm produced more than half of the commodity serviced by the H-2A nonimmigrant. Zamorano Produce, 2010-TLC-20 (Feb. 19, 2010). The term “agriculture” includes farming, livestock, and any practice connected with farming operations (including prep for market, storage, and delivery). The term of employment must be seasonal for things such as a short annual growing cycle, which require labor levels far greater than those necessary under normal labor conditions. Except in exceptional circumstances these types of visas are capped to 1 year.

Employers must show that there are insufficient workers who are able, willing, qualified and available to perform the temporary/seasonal agricultural work AND his/her employment will not negatively affect the wages/working conditions of similarly employed U.S. workers.

Prefiling Procedures:
1) Employer must offer, advertise, recruit and pay the higher of AEWR (adverse effect wage rate), prevailing hourly rate or piece rate, the collective bargaining rate or federal or state minimum wage. The prevailing rate is obtained from the State Workforce Agency.
2) Job Order must be placed with State Workers Agency between 60 and 75 days before job start date.
3) Job offer must include a) prohibition against preferring aliens; b) job qualifications/requirements; c) minimum benefits, wages, etc.; d) guarantee of work for 75% of workday; e) agreement to maintain sufficient records; f) effect of employee abandonment; g) need to terminate due to contract impossibility; h) deductions to wages required by law; i) provisions of written contract.

Filing Procedures:
Use ETA Form 9142 with ETA-790 that was submitted to State Workforce Agency. Submit to DOL National Processing Center. Application must be filed no less than 45 calendar days before the employer’s need. Staggered start dates not permitted. Separate application required for each start date. Employer must agree to several conditions on the application, including that it will not discriminate in hiring, no strike in progress, and will continue to offer work to U.S. citizens until 50% of job has been completed (except for small businesses). Proof of housing compliance and adequate workers compensation insurance must be submitted with forms. Employers must provide housing if worker cannot reasonably return home within same day. Employer must provide 3 meals and cannot profit from meals (cost only). Employer must agree to pay all transportation costs associated with arrival at work site.

The standards for an H-2B visa to be granted include 1) temporary job; 2) beneficiary meets educational, training, experience and other requirements for job; 3) there are sufficient H-2B visas available considering the numerical cap; 4) beneficiary is a national of one of the countries yearly designated; 5) petitioner obtained Labor Certification from DOL.

Description under student visa section. Click here for details.

Generally, spouses and children accompanying H visas holders will be granted an H-4 visa. A B-2 may also be granted to spouse/children if it is inconvenient or impossible to apply for an H-4.