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H-1B Fact Sheet

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Matrix Illustration 115932616; H-1B Fact SheetThis H-1B Fact Sheet discusses key H-1B issues such as the annual H-1B cap, H-1B cap exemptions, H-1B fee exemptions, H-1B portability, benching, attorney fees and penalties for H-1B related violations. See also our related article discussing H-1B-dependent employers.

Exemptions from the Annual H-1B Visa Cap

Some H-1B employer-petitioners and/or H-1B workers-beneficiaries are exempt from the annual H-1B Visa quota. These include:

  • Individuals who are employed by or who have an offer of employment from institutions of higher education, affiliated research organizations, nonprofit research organizations and government research organizations.
  • Physicians who have obtained a Conrad Waiver of the J-1 Home Residence Requirement for work in an designated underserved area.
  • individuals who have previously held H-1B status if they would NOT be eligible for a new 6 year period of stay (i.e., if they have been out of the US for one year or more).
  • Note that in cases of an individual who has previously held H-1B status, if in the US during all or part of that year of H-1B filing, s/he would not be subject to the annual H-1B Visa quota.
  • An H-1B Worker would be counted against the cap if s/he transfers from an “exempt” H-1B employer to an H-1B employer that does not have an exemption (e.g., from a university to a private employer).

Exemptions from H-1B Training Fees

Employers exempt from paying the H-1B training fee (i.e., the $750 or $1500 fee in addition to other US Government fees for each H-1B petition; amount depends on size of employer) include:

  • Institutions of higher education and related or affiliated non-profit organizations.
  • Non-profit or governmental research organizations.
  • Any employer filing for a second extension of stay for an H-1B worker.
  • Primary or secondary education institutions. Or,
  • A nonprofit entity engaged in established curriculum-related clinical training of students.

H-1B Portability

H-1B portability allows a nonimmigrant previously issued H-1B status to begin working for a new H-1B employer as soon as the new employer files an H-1B petition (including a certified LCA) with USCIS. Previously, individuals in this situation had to await USCIS approval before beginning new H-1B employment.

To qualify under this provision, an H-1B petition must be nonfrivolous, and the H-1B worker must be a nonimmigrant admitted to the US (no particular temporary visa category is specified, but the individual must have been previously issued H-1B status), must not have been employed without authorization before the H-1B petition was filed, and must be in an unexpired period of stay when the new H-1B petition is filed. In addition, to take advantage of H-1B portability provisions, the H-1B worker must have been lawfully admitted into the United States. The new employer must have filed a non-frivolous petition (a petition that has some basis in law or fact) while the alien was in a period of stay authorized by the Attorney General. Finally, subsequent to such lawful admission, the H-1B worker seeking to port must not have been employed without authorization.

The American Competitiveness in the 21st Century Act of 2002 (AC21) provides for H-1B extensions beyond the usual 6 year maximum in two circumstances:

  1. Under AC21 §104(c), a beneficiary of an Employment-Based 1st, 2nd or 3rd Preference (EB-1, EB-2, or EB-3) Petition who is eligible for permanent residence but for the application of the per-country limits may obtain extension of H-1B Visa status until the adjustment of status is decided.
  2. Under AC21 §106(a), H-1B Visa status can be renewed in one-year increments for beneficiaries of any Employment-Based petition until adjustment processing is completed as long as 365 days or more have elapsed since the PERM/ Labor Certification application or Immigrant petition was filed.

Corporate Restructuring and Amended H-1B Visa Petitions

When a corporate reorganization occurs, as long as the conditions specified by the Department of Labor are met, no new Labor Condition Application (LCA) must be filed to continue employment of an existing H-1B worker. However, the new entity must maintain a list of the H-1B workers transferred to it; and must maintain in the public access file a list of affected LCA numbers and their dates of certification, a description of the new entity’s actual wage system, the federal Employer Identity Number (EIN) of the new entity, and a sworn statement from an authorized representative of the new entity expressly assuming the liabilities and obligations of the existing LCA’s and containing certain specified language (including assumption of liability for any violations by the previous entity under the LCA).

The new entity is not authorized to employ any of the predecessor’s H-1B Visa employees unless either this statement is executed and placed in the public access file, or new LCA’s and petitions are filed. Successor employers will not be able to use existing LCA’s of the predecessor company to file new petitions or extend existing petitions. If the restructuring results in a change in the company’s H-1B dependency status, there will be no effect on the employer’s obligations with respect to existing H-1B workers, but any new H-1B hire or extensions of status for existing H-1B workers would be subject to whatever rules would now apply to the company (H-1B dependent or non-dependent.)

Benching H-1B Workers (Non-Productive H-1B Employees)

If an employer decision places an H-1B worker in nonproductive status, e.g., lack of work assignments, or lack of a permit or license, the employee must nevertheless be paid the full pro-rata amount due. Part-time H-1B workers in nonproductive status must be paid at least the number of hours indicated on the H-1B petition. If a range of hours is indicated on the petition, then the H-1B worker must be paid for the average number of hours he or she ordinarily works.

Moreover, if an H-1B employee regularly works more than the designated number of part-time hours stated on the petition, the Department of Labor (DOL) may charge the employer with misrepresentation. If the nonproductive period is due to “conditions unrelated to employment” at the H-1B worker’s “voluntary request and convenience” (such as caring for a sick relative or touring the US) or due to circumstances such as maternity leave that render the H-1B employee unable to work, the employer is not obligated to pay the H-1B worker, provided the period is not subject to pay under the employer’s benefit plan or under other statutes.

DOL cannot forgive H-1B employers from compliance due to annual plant shutdowns, holidays or other events that affect both US workers and H-1B employees.

However, DOL views lay-offs of US workers in such situations while retaining H-1B workers as a possible violation of other nondiscrimination laws. DOL also views such an action as a violation of the ACWIA (American Competitiveness and Workforce Improvement Act of 2000) layoff attestation for H-1B-dependent employers. These obligations begin once the H-1B worker “enters into employment,” which is deemed to occur when the individual first makes him or herself available for employment.

Even if the H-1B worker has not yet entered into employment, once the petition is approved, the required wage must commence 30 days after the H-1B worker is first admitted to the US, or if s/he is already here, 60 days after the H-1B worker first becomes eligible to work for the employer. The latter is deemed to be the later of the start date set forth on the petition or the date USCIS renders a status decision. Payment obligation ends if there has been a bona fide termination of the H-1B worker’s employment relationship.

Attorney Fees Related to the H-1B Visa

It a violation of the required wage provisions if the H-1B worker pays attorney fees and other costs connected to the performance of H-1B Visa program functions required to be performed by the employer (e.g., preparation and filing of LCA and H-1B petition) such that, when deducted from the H-1B worker’s wage, the wage would be below the higher of the actual or the prevailing wage. (If such payments would not reduce the employee’s wage beneath the required wage, they are permissible.) The regulation at 20 CFR §655.731(c)(9)(iii)(C) characterizes the deduction of such fees and costs from the H-1B worker’s wages as a “recoupment of the employer’s business expense,” and at 20 CFR §655.731(c)(12) deems the act of “imposing on the employee” such an expense to be an unauthorized deduction from wages.

Penalties and Liquidated Damages Related to the H-1B Visa

ACWIA prohibits requiring an H-1B worker to pay a penalty to the H-1B employer for ceasing employment prior to an agreed date, except that the employer-sponsor may receive liquidated damages in such a case, defining liquidated damages by reference to applicable State law. However, liquidated damages cannot be collected by deduction from an H-1B worker’s paycheck. Recoupment of H-1B related attorneys fees may be included in liquidated damages. However, the $750 or $1,500 “training” fee can never be part of liquidated damages and cannot be recouped in any form.

Benefits for H-1B Workers

An employer must offer benefits to H-1B workers on the same basis, and in accordance with the same criteria, as the benefits the employer provides to similarly employed US workers.

What are benefits?

Benefits include the opportunity to participate in such programs such as:

  • Health, life, disability, and other insurance plans;
  • Retirement and savings plans;
  • Cash bonuses; and
  • Non-cash compensation such as stock options (whether or not performance-based).

Under what conditions must benefits be offered to H-1B workers employed by multinational firms?

For an H-1B worker placed in the US for 90 or fewer continuous days, no benefits need to be offered if the H-1B worker remains on the home country payroll and continues to receive home country benefits without interruption. The H-1B employer must treat its US workers in the same manner when they are employed outside the United States.

H-1B workers placed in the United States for more than 90 continuous days must meet the above conditions and also receive the home country benefits that are equivalent to those offered by the firm to its similarly employed US workers.

NOTE: The body of law and regulations pertaining to the H-1B Visa category is extensive, complicated and very detailed. This summary touches only on some of what we think are important topics related to the H-1B Visa. Many others are not covered here. In addition, this Key H-1B Issues article is not a substitute for a qualified immigration attorney’s review and analysis of your particular situation as it relates to US law and regulations. We therefore urge you not to rely on this article to make important decisions regarding your case, but to consult a qualified attorney to discuss your case.