It’s almost that time of year again. We can file cap-subject H-1B’s for Fiscal Year 2012 as of April 1, 2011 for a start date of October 1, 2011. A case subject to the cap would be an initial H-1B where the prospective employee has never held H-1B status and is outside the USA preparing to enter for the first time. Another example of a cap-subject case would be an employee who is already in the USA but in another status, such as an F-1 student, and is eligible to change their status in the USA to H-1B classification.
Here are a few tips to keep in mind pertaining to the job offer, the job description and the degree requirement, 3rd party jobsite locations, licensure, and more, as employers evaluate their H-1B hiring needs:
-
The Job Offer and The Job Description:
The job offer and the job description must be for a specialty occupation that requires a minimum of a bachelor's degree or its foreign equivalent.
What is the definition of a specialty occupation? A specialty occupation requires the theoretical and practical application of a body of specialized knowledge along with at least a bachelor's degree or its equivalent. For example, architecture, engineering, IT, mathematics, medicine, allied healthcare occupations, occupations in business, accounting and finance, law, amongst others.
USCIS now requires very detailed job descriptions that contain the position summary, duties and responsibilities, as well as the percentage of time spent on each job duty. It is hard to imagine that a job description with a 15-bullet point list of duties and a full page in length is insufficient, but when you work with a skilled immigration practitioner, this can be successfully argued against the O*NET and the OOH which is the primary source of job information for USCIS and the Department of Labor.
Employers need to be prepared with complete job descriptions for their H-1B prospective employees and document the need for a degreed professional thoroughly in their casework and work with an immigration attorney that is well versed in handling H-1B casework as well as PERM labor certifications.
-
The Bachelor’s Degree Requirement:
Small to medium-size companies are being asked to justify why the position requires someone with a bachelor's degree and to explain, through various types of evidence including organizational charts, classified ads for the position, and educational information on previous employees in the same position, why their business is more unique than other similar businesses in their industry that they would require a candidate with a bachelor's degree in a particular position.
Bachelor's Degree equivalency can be attained through a single-source foreign degree that meets US standards, a combination of a degree and work experience, or a work experience alone equivalency that meets the "3 for 1" rule; namely, that 3 years of work experience equates to 1 year of university level education (this requires an expert credential evaluation by a service that is authorized to evaluate work experience).
Note: It is essential to have a skilled immigration professional in labor certification establish a strategy for your green-card sponsorship (permanent residency) so that the degree equivalency for your H-1B will be compatible with the classification under which you will be filing your PERM labor certification and green-card case.
-
File Early
When should I start my case?
Immigration Compliance Group accepts H-1B cap-subject cases well in advance to avoid the rush that normally occurs when employers become aware of cap deadlines and when foreign workers obtain job offers that require cap subject visa numbers. Bottom line, cap-subject cases should be started as early as possible. We advise employers to assess their hiring needs for FY 2012 and contact their immigration attorney to discuss timing issues.
How long does it take to prepare an H-1B Case?
We do not recommend waiting until the last minute, although the last few years with the economic downturn has not been indicative of the “norm” in previous years when the cap can be reached on the first day of filing. It goes without saying, because of the various government agencies that are involved in the process and delays that can occur at the front end with the Department of Labor in certifying the Labor Condition Application, that planning in advance of filing is necessary.
With good front-end case strategy, consulting with an attorney that has a depth of experience with H-1Bs and a streamlined case process, the many steps involved in preparing an H-1B, requiring the cooperation of all parties, can go very smooth and an approvable petition can be filed with all necessary documents. An approval petition requires that a case be prepared correctly from the start. It is often not possible to reverse strategy after the case is filed. Planning ahead is crucial to flush out any issues that need to be overcome, particularly when working with IT and healthcare consultants and staffing agencies that have 3rd party jobsite issues.
In summary, the demand for H-1B visas, although not as high in this economy, have tougher documentation standards and Department of Labor delays sometimes for several weeks with employer EIN# verification issues. By understanding the issues involved in the H-1B process, Immigration Compliance Group takes a proactive approach to assure that the needs of their clients are addressed early.
-
When the Occupation Requires a License
USCIS' approval of an H-1B petition that requires a license is not authorization for the employee to practice his or her profession without the required license. This is particularly prevalent when processing H-1Bs for teachers and healthcare professionals. USCIS regulation provides that if an occupation requires a state or local license to fully perform the duties of the occupation, the foreign worker must have the license prior to the approval of the petition.
This can be a Catch 22....Some states will not issue a state license unless the individual worker presents evidence to the State Board that they are legally authorized to be employed in the USA. Some State Boards require the worker to establish to the State Board that they have been granted H-1B status as a prerequisite to issuing the license. For example, certain State Boards of Pharmacy will not issue a pharmacist license until the worker presents evidence of work authorization. Teachers and registered nurses have been unable to obtain licensure until they obtain social security numbers which cannot be achieved until one is authorized to work in the USA.
With the above being said, USCIS adjudicators have been instructed to approve H-1B petitions for a one-year period if a State or local license to engage in the profession is required, and the appropriate licensing authority will not provide such license to the worker without evidence that that they have been granted H-1B status. At the end of the one-year period, the employer is required to file another petition with a request for extension and also present evidence at that time that state licensure has been obtained.
As a condition to approving petitions involving state or local licensure, the worker must demonstrate that he or she has filed an application for the license according to the State or local rules and procedures, provide evidence that they are qualified to receive the license, and that all educational, training experience and other requirements are met, including healthcare certification, at the time of filing the petition. For instance, Physical Therapists must provide a letter or statement signed by an authorized state physical therapy licensing official in the state of intended employment, indicating that the PT is qualified to take the state's written licensing examination for physical therapists and thereafter obtain state licensure.
:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
