Representing Canadian Businesses and Professionals for over 15 years

H-1B Professional-U.S. Immigration Permit for University Degree Professions

• Introduction to This Webpage
• 3.2A H-1B Status: Temporary Professional Worker
  • (a) Introduction to H-1 Status
  • (b) Requirements for H-1B Status
• Another H-1 Page at This Site:
  • H-1B Visa Status for High Tech Companies-Law Offices of David Stanton

You're going to be successful long term if you have good people. ---Archie W. Dunham, Chairman & CEO, Conoco Inc., in Business Week,

Section numbers correspond to the print version of the Canada-U.S. Business Immigration Handbook.

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Joseph C. Grasmick

Introduction to This Webpage

"If you're Canadian and have an H-1, you're probably on the wrong visa."

Before reviewing this page, please consider the easier B-1 Business Visitor and the TN NAFTA permits. Also consider the long-term L-1 intra-company Transferee Permit. You can get these three permits right at the border. (See a photograph of the actual "I-94" card.) In contrast, you must mail H-1 applications to two government agencies and wait.

Look at this graphic to see if your profession fits within the O-1, TN-1 and/or the H-1B. Use this flowchart to decide between the TN-1 and the H-1B.

It is more socially responsible to select the TN over the H-1. Overuse of H-1's could result in making an H-1 unavailable for someone else. There is a limit on the number of H-1's the INS can grant each year. There is no such limit on TN's. Although we have not yet reached the H-1 limit this year, it could happen.

You can find the corresponding text for all of the following Chapter and Section references, in the full text version of the Canada-U.S. Business Immigration Handbook. You can order it on-line directly from the publisher, Carswell Thomson Professional Publishing.

Since I wrote this page the government has changed the H-1 rules. Your lawyer will update you. If you are considering using my office, I invite you to read about my office, legal fees and client opinions. This should help you make an informed decision.

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3.2A H-1B Status: Temporary Professional Worker

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(a) Introduction to H-1 Status

This section details requirements for H-1 status for professionals in specialty occupations. For information about other H-1 classifications refer to Immigration Law and Business by A. Fragomen, A. Del Ray, and S. Bell [Appendix A, A.1 (a)].

Most of the following requirements can be proven by information provided in a covering letter from the company applying for H-1B status (the petitioner) for the employee (the beneficiary) [see "H-1 Application Guidelines," this section, (i) 3]. A sample letter for this type of petition can be found in (j), Figure 3.3.

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(b) Requirements for H-1B Status

(i) Must leave the United States when work is complete

The H-1B non-immigrant category requires an intent by the employer (the petitioner) and the employee (the beneficiary) that the placement by temporary. If either side fails to show this temporary intent, status will be denied. It is not necessary for the actual position to be temporary: employers need only demonstrate that the placement of the non-U.S. citizen in that position is to be temporary. Both the Immigration and Naturalization Service and the State Department recognize a concept known as "dual intent". You can simultaneously intend to do temporary work now and at some later date work permanently. An H-1 employee need not maintain a foreign residence.

(1) Document Necessary to Prove Requirement

Letter from petitioner [Guidelines, (i), 3 e)]

(ii) Must qualify as a professional

(1) Managerial Personnel

Managerial personnel must now show that they qualify as "professionals," (Specialty Occupations, see (2) below). There is no independent means under the H-1 visa to qualify.

This means that business people must show that their particular specialty normally requires the skills of a university trained professional. It also means that the business person must have the degree either through academic study or through carefully defined alternative work experience (See (2) below).

(2) Professionals

TN qualification for professional activities will not necessarily qualify the applicant as an H-1B professional [Figure 3.1, earlier in this section].

To qualify in the H-1B professional category, both the beneficiary and the position must be professional in nature. The law defines a profession as a specialty occupation that requires the critical and practical application of a body of highly specialized knowledge. It lists a number of areas in which a professional might be employed, including:

• Accounting
• Architecture
• Arts
• Business Specialties
• Education
• Engineering
• Law
• Mathematics
• Medicine and Health
• Physical Sciences
• Social Sciences
• Theology

Case

A U.S. corporation wishes to employ a Canadian citizen for a high-level position. However, the position is not in a business specialty recognized by the INS.

Solution: Show that the particular position is so complex that it requires the services of a person possessing a Bachelor's degree. Alternatively, show the position has always been occupied by a person with a Bachelor's degree or similar positions in the industry require such.

(A) Professional with Bachelor's Degree

To be a designated professional, the beneficiary typically must have completed a specific course of study at an accredited college or university. That study must have culminated in at least a bachelor's degree. Finally, such a degree or its equivalent must be the minimum requirement for entering the position in the United States. To prove this requirement, at least a diploma and an evaluation stating the equivalent U.S. degree must be submitted [Appendix A, A.3, 4].

(B) Professional without Bachelor's Degree

Some licensed individuals and people with a certain level of professional experience can overcome the bachelor's-degree requirement by carefully documenting those special qualifications. This documentation must include one or both of the following:

1. An unrestricted licence, registration, or certification authorizing the beneficiary to immediately engage in the profession.

2. A certain level of education, specialized training, and/or professional experience. This must be equivalent to the training received by bachelor's-degree recipients.

If the beneficiary intends to rely on the second item above, he or she must submit one or more of the following:

. . .

(3) Documents Necessary to Prove Requirement
. . .

(iii) Must acquire a U.S. licence, if one required by the state in which employment is located
. . .

(1) Document Necessary to Prove Requirement
. . .

(iv) Must demonstrate need for high-level employee
. . .

(v) Petition must contain a Labor Condition Application approved by the Department of Labor

• The Labor Condition Application for H-1 status is not the same as a Labor Certification for a green card. [See 4.1] It is much easier and faster to get. You do not have to place a help wanted ad in the newspaper.
• You do not have to provide supporting documents. You do have to have the supporting documents on file in case you are audited.
• The form is deceptively simple. The Labor Department only "approves" it by checking whether or not you filled out the form correctly. Even so, almost 25% of the applications are denied merely because the form is not filled out correctly. Also, remember that if you are ever audited, you must have had all the supporting documents on file or face penalties.
• An employer can file the application for more than one person at once. If you do this, make sure you have supporting documents on file for all beneficiaries.

Possible penalties include civil money penalties, payment of back wages to the H-1B, and debarment of the employer from employing foreign workers in the future. As is the case with other government forms, intentional misrepresentation can result in criminal perjury sanctions. The message: employers should make sure that their files are complete and updated.

On the Labor Condition Application Form ETA 9035 [Exhibit 3.1a], the employer makes four important statements. For each statement, the employer must immediately have supporting documents in its files.

Here is a summary of the four required statements with examples of required documents for employers' files:

(1) Salary Must Not Undercut U.S. Workers' Salary

The salary offered the H-1B beneficiary must be at least the greater of one of the following:

• the actual salary paid to everyone at the proposed worksite working at substantially the same job, with similar qualifications and experience, or
• the prevailing salary for the job in the worksite's geographical area (See 4.1(i)(i)(5)(B) for a discussion of prevailing salary in the green card context.)

If there are no other people working at substantially the same job, the actual salary figure will be the salary figure the employer pays the beneficiary.

The salary must exceed minimum Federal, State and local wage requirements.

(A) Documents Necessary to Have in Your Files to Prove Requirement

It is not difficult to show that the beneficiary's salary matches or exceeds the salary of present employees. Have this in your files for every employee with qualifications and job experience even slightly similar to the beneficiary:

• full name
• home address
• occupation
• rate of pay
• hours worked each day or week
• additions/deductions to pay
• total wages paid

It is more difficult to show that the salary is prevailing for the job in the area. You can show a prevailing salary in one of five ways. The first four are "safe harbors"; you are safe if you use the first four documents. The fifth way is acceptable, but if audited, the burden will be on the employer to demonstrate the legitimacy of the information.

• Wage determination published under requirements of the Davis-Bacon Act. These are available in public libraries or through the State Employment Security Agency (SESA). [For the relevant State Employment Security Agency, contact the regional office of the Department of Labor, Appendix A.7.] A safe harbor, but not likely your occupation, is covered in these surveys.
• An arm's-length union contract, if the job is unionized. A safe harbor.
• A customized State Employment Security Agency salary survey. Request, in writing, from the State Employment Security Agency with jurisdiction over your area. [Contact the regional labour office, see Appendix A.7.] If you are unable to wait for the determination, order it, and rely on other legitimate source of wage information in the meantime [See below]. Even if the subsequent SESA survey is higher, this is still a safe harbor if the employer retroactively compensates the H-1 for the difference.
• A survey conducted by an independent authoritative source. This must be published in a book, newspaper, periodical, loose-leaf service, newsletter or other similar medium within the 24-month period preceding the filing. It must be published by an organization with a recognized expertise in the field. It can be a professional, business, trade, educational or governmental association, organization, or other similar entity, not owned or controlled by the employer. [See Appendix A.1(a) for an example of a survey covering all engineering professions.] This is a safe harbor. The salary can be up to 5% lower than the survey figure.
• Another legitimate source of information. This is probably the method most of the readers will use, but not a safe harbor. Useful when you are certain the salary is well above prevailing. You can have a professional do the salary survey for you. [Appendix A.3] The salary can be up to 5% lower than the survey figure.

The prevailing salary data must survey jobs requiring a substantially similar level of skills. It must survey salaries within the geographical area of intended employment. This geographical area is the area within normal commuting distance of the place of employment. Use a Metropolitan Statistical Area to define normal commuting distance. If there are no such jobs in the area of intended employment, you can look at areas outside the area of intended employment.

The employer must get a new copy of prevailing salary information every 24 months throughout the period of employment of the H-1 beneficiary. This period runs from the date the labor condition application was approved. The employer must adjust the rate of beneficiary's pay upwards if the prevailing rate exceeds beneficiary's actual pay.

Pay close attention to the 24-month requirement. You will not get a reminder. Although your labor condition application may be valid for up to 6 years, you must update the wage survey every 24 months.

Remember, you must have data showing both the salary actually paid to employees and the prevailing salary. This is because the employer must pay the greater of the two figures.

(2) Beneficiary Will Not Hurt Working Conditions for U.S. Workers

Hiring the H-1B cannot hurt the hours, shifts, vacation periods and fringe benefits of other U.S. workers.

(A) Documents Necessary to Have in Your Files to Prove Requirement

There are no clear rules. Examples include published studies, surveys or articles regarding working conditions at your worksite. Fringe benefit packages, and office policy manuals which pre-existed the employment of the H-1B, are additional examples.

(3) No Strike or Lockout

There can be no strike or lockout from a labour dispute in beneficiary's job at the worksite.

(A) Documents Necessary to Have in Your Files to Prove Requirement

In the case of an investigation, the employer will have the burden of proof in showing that there were no relevant labour problems in the job classification. While the current laws do not require the employer to maintain documents, the best precautionary approach is to maintain records on prevailing and actual wages for at least a one-year period after the end of the beneficiary's employment. If the employer withdraws his H-1B application, or if a labour complaint is pending, the employer should maintain such records for a year as well.

(4) Public Notice of Intent to Hire an H-1B

The employer must have publicized the fact that it intends to hire an H-1B. The employer must also publicize certain proposed employment terms for the H-1B. This is so that any interested party can challenge the employer's statements and trigger a Labor Department audit.

The notice can be one of two things:

• communication to the bargaining representative if there is one for the proposed job, or if not
• notices posted in conspicuous locations at the worksite

(A) Documents Necessary to Have in Your Files to Prove Requirement

If there is a collective bargaining representative for the job, keep a copy of a letter or notice sent to the representative. The notice can be the same as that at Figure 3.3A. It must include all of the information in the sample at Figure 3.3A.

If there is no such representative, your files should have two notices posted for at least 10 days. The Handbook suggests 14 consecutive business days to avoid mistakes. Post the notice in two conspicuous places at the prospective worksite. The notice must contain all of the information as the sample at Figure 3.3A.

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