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H1-B Classification and Documentary Requirements.
[Section (h) added 10/6/2010; AD10-48; PM-602-0009]
The following terms relate directly to the H-1B temporary worker classification. Adjudicators should be familiar with these terms. Some of the terms have been used in other contexts under prior law.
The term “specialty occupation” is defined in section
of the Act and described in
. The term was created by the Immigration Act of 1990 (IMMACT), although its definition was taken from prior case law which related to “professional” occupations which qualified for pre-IMMACT H-1 status. An alien may qualify for a specialty occupation by virtue of formal education, experience, or a combination of both. However, do not rely on pre-IMMACT precedent case law for guidance on specialty occupations. While there are no published precedent decisions on this subject, service centers (where virtuall
y all such cases are filed) may find prior non-published appellate orders as useful guidance and training material. For statistical purposes, this category is referred to internally as H-1B1.
Distinguished Merit and Ability
As currently applied, this term originates in section
relating solely to fashion models. Prior to IMMACT, the term was more broadly applied to artists, entertainers, musicians, etc. Case law which relates to this term relates to the earlier definition and should not be applied to new cases. Fashion models are described in
8 CFR 214.2(h)(4)(vii)(A)
. See also the definition of “prominence” located in
8 CFR 214.2(h)(4)(ii)
. For statistical purposes, this category is referred to internally as H-1B3.
DOD (Department of Defense) Cooperative Research Project
The term “DOD researcher” is described in
8 CFR 214.2(h)(4)(vi)(A)
. The term is used to distinguish these H-1B cases from other H-1B cases. It should be noted that unlike the other H-1B cases, the DOD Researchers do not require a labor condition application. Beneficiaries of such cases must otherwise meet the education and experience qualifications described for a specialty occupation. For statistical purposes, this category is referred to internally as H-1B2.
Physicians in the H-1B classification are limited to those described in
of the Act. A petition for an
alien physician coming to the United States to teach or conduct research or both
at or for a public or nonprofit private educational or research institution or agency, in which no patient care will be performed except that which is incidental to the physician's teaching and research may be adjudicated like a petition for an alien coming to perform services in a specialty occupation. If
patient care is involved, neither a license or authorization from the state needs to be submitted.
A petition for an
alien physician involved in direct patient care
must be accompanied by the following:
An approved labor condition application;
A license or other authorization required by the state of intended employment to practice medicine if the physician will perform direct patient care and the state requires the license or authorization;
A full and unrestricted license to practice medicine in a foreign state or evidence that the beneficiary has graduated from a medical school in the United States or in a foreign state;
Evidence that the alien has passed the Federal Licensing Examination (FLEX) or an equivalent examination as determined by the Secretary of Health and Human Services
the alien received his/her medical education in the United States; and
Evidence that the alien has passed the English test given by the Educational Commission of Foreign Medical Graduates (ECFMG) to establish competency in oral and written English language
the alien has received his/her medical education in Canada or the United States.
The Secretary of Health and Human Services announced the physician licensing examinations which will be considered equivalent to the FLEX. Parts I, II, and III of the National Board of Medical Examiners (NBME), and Steps 1, 2, and 3 examinations of the new United States Medical Licensing Examinations (USMLE) program, have been recognized by the Secretary as equivalent to the FLEX.
Physicians who received their graduate medical training in Canada must take the FLEX, or its equivalent. Many times Canadian MD's can get reciprocal U.S. state licenses based upon their holding Canadian licenses to practice medicine. Even so, they must still take the FLEX to become eligible for H-1B classification if they intend to perform direct patient care. Furthermore, pursuant to a determination of the Department of Health and Human Services (HHS), the Licentiate of the Medical Council of Canada (LMCC)
is not equivalent to the FLEX.
Labor Condition Application
As defined in
of the Act, a Labor Condition Application (LCA) is a statement filed with the Department of Labor (DOL) on Form
by a prospective H-1B employer certifying:
That the alien hired in a specialty occupation (or as a fashion model) will be paid at least the same wage as other similarly employed persons or the prevailing wage for the occupation in the area of employment;
That the alien will be provided with working conditions which will have no adverse effect on other similarly employed persons;
That no strike or lockout is in progress; and
(If the employer is a “dependent employer” as defined in section 212(n)(3)(A) of the Act) that no U.S. worker has been or will be displaced as a result of the H-1B alien’s employment.
Certain employers, such as willful violators and dependent employers must make additional attestations.
Other details about LCA requirements are described in section 212(n). An LCA may be valid for a period up to three years. [See
20 CFR 655, Subpart H
, for a description of DOL handling procedures for an LCA.]
The LCA, which may be a photocopy of the original, must be valid for the period of time requested for the petition. The dates of intended employment cannot extend outside the dates on the LCA. Multiple unnamed beneficiaries may be included on the LCA, however the petitioner must reference, by file number, all previously approved petitions that used the same LCA. Furthermore, once a slot on the LCA has been used for a specific alien, that slot cannot be used for another alien even if the original alien leave
s the job permanently before the LCA has expired.
If the alien will be performing the same duties at another location for the same employer a single LCA can be filed if:
The LCA is filed with the DOL regional office having jurisdiction over the initial place of employment; and
All places of employment are within a single DOL regional office.
Approval by the DOL of an LCA in an occupational classification does not constitute a determination by that agency that the occupation in question is a specialty occupation.
As of March 30, 2000, all H-1B petitions must include Form I-129W, H-1B Data Collection and Filing Fee Exemption. As the name implies, the form is used to adjudicate requests for exemption from the additional filing fee ($1,000) mandated by the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA). In addition, the form is used to collect certain statistical data regarding the education, training and occupations of H-1B beneficiaries. The regulations at
8 CFR 214.2(h)(19)
describe the requirements for this exemption.
The regulations and instructions for Form
provide precise, detailed instructions on what types of documentation must be submitted in support of a petition. It is incumbent upon the petitioner to fully and accurately describe the position as well as providing evidence of the beneficiary’s qualifications to immediately engage in the occupation. Review all required documents carefully to determine if they meet, qualitatively, the requirements of the regulations and forms instructions. The following table indicates where these requirements can be fou
nd for each type of H-1B petition:
If the State in which an alien H-1B will work requires a license in order to engage in professional activities, then the alien beneficiary must have that license before an H-1B petition may be approved. The petitioner must provide a certified copy of the alien's valid State license, certification, or registration to practice the profession. A temporary license or State authorization for unlicenced persons to perform professional activities under the supervision of a licensed professional must be examined on
a case-by-case basis to determine if the beneficiary can be considered to be employed in a professional capacity. When the alien has a temporary license, the approval period of the petition and/or extension of stay application cannot exceed the validity period of the temporary license. [
8 CFR 214.2(h)(v)
(3) Adjudicators may face situations where State or Local licensure is required to engage in a particular H-1 B specialty occupation but the alien beneficiary of an H-1 B petition cannot obtain that license without presenting, as a prerequisite, evidence of an approved H-1 B petition on that alien's behalf. A similar "catch 22" scenario exists where a State requires an applicant for a license to present a social security number that is valid for employment but the alien cannot obtain a social security numbe
r until he or she has been granted H-1 B status.
(Paragraph (d) (3) added 03-21-08. AD08-10)
Under such circumstances, adjudicators should verify that that the alien beneficiary is fully qualified to receive the State or local license, meaning that all educational, training, experience, and other substantive requirements must be met at the time of filing the petition. The petitioner must demonstrate that the alien beneficiary has in fact filed an application for such State or local license in accordance with the requirements of the State or local jurisdiction in advance of being granted employment
authorization in the U.S. Adjudicators are instructed to approve the petition for a one-year validity period,
that the sole reason why the alien beneficiary does not possess such license is that the appropriate licensing authority will not grant such license to an alien absent evidence that the alien has been granted H-1 B status. Approval of such a petition does not constitute authorization by USCIS for the alien to engage in any activities requiring such licensure. Any petition that requests an extension of stay beyond the one-year validity period on behalf an alien who has been granted H-1 B status under this pr
ovisional measure must show that the alien has obtained the requisite license. If the alien has not obtained the license at the time the petition and extension are filed, such petition will be denied.
Follow the general adjudicative procedures described in
of this manual.
If you are satisfied that the LCA and all other required documents are present and the petition is approvable, endorse the approval block. Initial petition approvals may be for a period of up to three years (5 for DOD R&D projects), not to exceed the period of time requested on the petition or the validity period of the LCA. If the occupation is one which requires a license, the validity period for the approval cannot exceed the validity period of the license. The beginning date for a petition should be the
date requested by the petitioner or the approval date, whichever is later. Approval may be no more than six months earlier than the date of need. If a beneficiary has been in the U.S. on another H-1B or L-1 petition, the petition may not be not approved for a period which would permit the beneficiary to remain for an aggregate of more than 6 years (10 for DOD R&D project workers). See
Matter of Safetran
, 20 I&N Dec 49 (Comm. 1989)
. If the alien is present in the United States and requires a change of status, follow procedures described in
. If the alien is present in the United States and requires an extension of stay, follow procedures described in
. Notify the petitioner of the action taken using CLAIMS
, Notice of Action. If action is completed in a local office on an emergent basis, the file must be returned to the appropriate service center for storage. Because of severe numerical limitations, Headquarters, Adjudications must be contacted to obtain authorization before approving an H-1B2 petition for a DOD project alien.
If the alien is present in the United States in another status or on a different H-1B petition, there can be no significant (i.e., longer than that required for normal mail delivery) time lapse between the beginning date of the extension or change of status and the (subsequent) beginning date of the LCA.
Prepare a notice of denial, also on Form I-797. Advise the petitioner of the right of appeal to the Administrative Appeals Office. Retain the file, in accordance with local procedures, until the appeal period expires or the appeal is received.
Transmittal of Petition
If the beneficiary requires a visa, the duplicate of the approved petition, with the supporting documents, shall be sent to the appropriate consul. When advance notice of approval (via fax or cable) is directed to a consul, the petitioner shall be instructed promptly to have the beneficiary contact the consul. The petition, before being mailed, shall be stamped "Approval previously forwarded".
When the beneficiary does not require a visa, the duplicate petition without supporting documents shall be forwarded to the appropriate port of entry.
Deciding If the Proposed Employment Is a Specialty Occupation
Although the definition of specialty occupation is included in the statute itself and the regulations are specific regarding the criteria for determining what qualifies as a specialty occupation, approval or denial often comes down to a judgment call by the adjudicating officer. There are numerous references available (such as the DOL’s Occupational Outlook Handbook) to describe specific vocational preparation for various occupations. However, it is important to note that occupations are rapidly evolving an
d job titles themselves are often meaningless. In order to correctly adjudicate a case, it is necessary to consider all the facts surrounding the petition: the beneficiary’s education and work experience, the nature of the petitioner’s business, industry practice, and salary (both offered to the beneficiary and typical for the industry). It is important not to be so influenced by a single factor, such as the job title or salary, that other indicators are overlooked. If significant doubts exist regarding the
beneficiary’s work experience, the adjudicating officer may request an overseas investigation (see
or refer the case to the appropriate local ICE office for interview, field examination (see
), or local investigation.
Equivalency of Experience and Education
One of the most common situations an adjudicator will encounter is an H-1B petition filed for an alien in specialty occupation where the alien lacks a U.S. bachelor’s degree. Adjudicators should be thoroughly familiar with
8 CFR 214.2(h)(4)(iii)(D)
which describes the kind and amount of experience which can be used to establish the equivalence of a degree. Three years of professional experience may be used to substitute for each year of college-level training. The most critical aspect of this type of adjudication is deciding whether the
of experience is at high enough level to qualify as “professional.” Experience is generally documented through letters from past employers and may be so lacking in specificity as to make the qualitative determination difficult or impossible. The regulations for deciding equivalency are very specific and must be closely followed.
Foreign educational credentials, licenses and other forms of documentation are easier to evaluate than experience. The petitioner may establish from an authoritative source or from transcripts, certificates, or other such school records that the alien has college-level education. College-level training may have been acquired at a college or university or other academic institution which grants a degree, diploma, or certificate, such as a technical college. It may be useful to compare the beneficiary’s age a
t completion and the duration of the course of study, with the average age of graduates of United States institutions offering similar programs as a factor in determining equivalency of education.
Specialized training may have been acquired through an apprenticeship program, employee-sponsored training courses, vocational training schools, or other commercial training facilities. The starting and ending dates of all training in the field must be shown. Training certificates and an outline or summary of the curriculum should be submitted.
Membership in a professional association,
, is insufficient evidence of equivalency. An association which grants certification or registration in the profession should have an accrediting body which has standards for the profession, and which issues an official document to applicants verifying that they have been awarded professional credentials in the profession. The standards of the organization should be reviewed to ensure that bachelor’s degree or higher, or its equivalent, is required for membership.
In suspect cases, overseas experience can be verified by the overseas DHS office (see
on requesting an overseas investigation) . Such investigations should not be routinely requested, but can be used when all other avenues have been explored and there is still serious doubt about claimed experience.
An evaluation by an official who has authority to grant college-level credit at an accredited college or university with training and/or work experience in the profession can also be used to support an equivalency claim. USCIS does not require the alien to be enrolled in a program for college credit at the university in order to accept the evaluation of such an expert. However, the official must be formally involved with the college or university's official program for granting credit based on training and/
or experience to have the required authority and expertise to make such evaluations. The evaluation may be done in the official's name as an individual, or as an authorized representative of the college or university. Any such evaluation should be given considerable weight in determining eligibility.
Results of recognized college-level equivalency examinations or special credit programs, such as the College Level Examination Program (CLEP), or Program on Noncollegiate Sponsored Instruction (PONSI) must be translated into college credits by an authoritative source in the particular program or by an authorized official from an accredited college or university, such as the registrar, in order for the results to be applied towards the degree requirement.
There are a number of outside organizations which evaluate educational credentials to determine degree equivalency. Some organizations may also provide an opinion on the equivalency of
to education. It is important that the adjudicator distinguish between these two types of evaluations.
The latter type of evaluation carries little weight
does not specifically recognize or accredit any sources of evaluations, foreign educational degree evaluations can be of assistance if they are thorough, well documented and specific in reaching an equivalency determination.
Assessing the Needs of the Petitioner for the Services of the Beneficiary
This issue is occasionally present in H-1B petitions filed by small businesses for aliens with professional skills not normally associated with persons employed in such a business (e.g., a petition for an accountant filed by an auto repair business or restaurant). Often, such petitions are filed by a relative or family friend as an accommodation to the beneficiary. Either the beneficiary will be employed in a lesser capacity or he or she will seek other employment immediately upon arrival. The burden of pr
oof falls on the petitioner to demonstrate the need for such an employee. Unless you are satisfied that a legitimate need exists, such a petition may be denied because the petitioner has failed to demonstrate that the beneficiary will be employed in a qualifying specialty occupation.
Determining the Petitioner’s Ability to Pay the Required Wage
This issue, like the preceding one, is most commonly associated with small enterprises which do not necessarily have the assets required to pay the salary guaranteed in the petition. Such a petition may be an accommodation to a relative or friend who will seek other employment or there may be an agreement to work for lower wages. It is not necessary that complete financial data be submitted with every H-1B petition. However, if in the discretion of the adjudicating officer the financial condition of the pet
itioner is so questionable as to call into question whether the petitioner really intends to employ the alien as claimed, evidence of financial ability may be requested. This is because the financial standing of the petitioner, when taken in consideration with other factors, may be indication that the petition is an accommodation and not a valid job offer. Other factors that may be examined include, but are not limited to, the nature of the petitioner's business, the relationship between the beneficiary an
d the owners/officers of the petitioning entity, and the petitioner's immigration history.
Effect of Beneficiary’s Intent to Remain Permanently
For an H-1B or L nonimmigrant, the fact that a labor certification, permanent visa petition or adjustment of status application has been filed does not effect eligibility for nonimmigrant H-1B or L status. [See
8 CFR 214.2(h)(16)
Ability to Engage in the Occupation Immediately upon Entry
This issue often arises in occupations where a state license is required. If the beneficiary will require training or must take a licensing examination before commencing employment in a specialty occupation, the petition may not be approved. See
Matter of St. Joseph's Hospital
, 14 I&N Dec. 202 (Reg. Comm. 1972).
Extension of H-1B Status Based on a Pending Labor Certification Application or Employment-Based (EB) Immigrant Petition
[Updated May 28, 2008]
(A) Conditions for the Granting of an H 1B Extension of Stay Under Section 106(a) of AC21.
Assuming the alien is otherwise qualified for an extension of H-1B status, USCIS will grant an extension beyond the 6th year if evidence is provided that:
A labor certification is unexpired at the time of filing of the Form I-129 H-1B extension petition; and
The labor certification was filed with DOL or the Form I-140 petition was filed with USCIS at least 365 days prior to the date the alien beneficiary will have exhausted 6 years of H-1B status in the United States pursuant to
of the INA; and
The extension and the I-129 petition are otherwise approvable.
An extension of stay under section
106(a) of AC21
should not be granted if, at the time the extension request is filed, the labor certification has expired by virtue of not having been timely filed in support of an EB immigrant petition during its validity period, as specified by DOL.
Cut off for Granting of an H 1B Extension of Stay Under Section 106(a) of AC21.
USCIS will grant an extension of stay to such H 1B nonimmigrants in one-year increments until a final decision is made to:
Deny the application for labor certification;
If the labor certification is approved, to revoke the approved labor certification;
Deny the EB immigrant petition; or
Grant or deny the alien's application for an immigrant visa or for adjustment of status.
A decision to certify, deny or revoke an application for labor certification is made by one of the Department of Labor's certifying officers.
If the application is denied or revoked, the employer is advised that there is a period of time within which the decision may be appealed to the Board of Alien Labor Certification Appeals (BALCA):
For denied or revoked Form ETA 9089 labor certification applications, the employer must file an appeal within 30 days.
If the employer does not file an appeal within the required timeframe, the denial becomes the final decision of the Secretary of Labor. USCIS will not consider a DOL decision to be final until either the time for appeal has run and no appeal has been filed or, if an appeal is taken, the date a decision is issued by BALCA.
Therefore, the labor certification will still be considered "pending" while the denial or revocation of the labor certification application may be appealed, or while the appeal is actually pending, for the purposes of determining if an H 1B nonimmigrant is eligible for extension of stay.
Combined Pre- and Post-Sixth Year Extension Requests.
USCIS will grant, in certain instances, extensions that request time remaining towards the six-year maximum under section
of the INA and additional time allowed under section
106(a) of AC21
Seventh year extension requests under section
106(a) of AC21
may be made in a petition that also contains a request for an extension of stay that reaches the maximum six year limit. USCIS adjudicators should first determine the amount of H-1B extension time that may be granted to reach the six year limitation of stay, then determine if the labor certification or
petition was filed at least 365 days by the conclusion of the six year limitation of stay. If so, then the one year Section
106(a) of AC21
extension may be granted.
However, in no case can an extension be granted for more than a three year period of time. If the alien beneficiary would no longer be in H 1B status at the time that 365 days from the filing of the labor certification application or immigrant petition has run, then the extension of stay request cannot be granted.
Documentation for Form ETA 750 Labor Certifications Filed Pre PERM and Still Pending, and for Form ETA 9089s Filed in PERM.
USCIS will accept the following documents as evidence that an application for labor certification filed on behalf of the H 1B beneficiary is still pending, or has been certified and is still valid:
If the labor certification is a Form ETA 750
that is still pending with DOL, a screen-print from the DOL Public Disclosure System (PDS)
that shows that the status of the labor certification application is In Process or is actively On Appeal that includes the name of the petitioning employer, the date that the Form ETA 750 was filed, the name of the alien beneficiary, and the case number assigned to the pending Form ETA 750; or
If the labor certification application was certified on or before July 16, 2007, a complete copy of the Form ETA 750
or Form ETA 9089 which shows the date of certification and a copy of the
Form I 140
petition receipt notice for the petition filed on behalf of the H 1B beneficiary; or
If the labor certification application was certified after July 16, 2007, a complete copy of the Form ETA 750
or Form ETA 9089 which shows the date of certification and the date upon which the labor certification will expire, along with a copy of the
Form I 140
petition receipt notice for the petition filed on behalf of the H 1B beneficiary, if any.
If an applicant for extension of stay cannot present a screen print from the PDS, he or she may present a letter from DOL issued within the previous 60 days prior to the filing of the extension petition instead. The DOL letter must explain why the PDS screen print is unavailable and verify that an application for a labor certification is pending.
Procedures for Calculating Maximum Period of Stay Regarding the Limitations on Admission of H-1B Nonimmigrants
USCIS officers shall comply with the following guidance to determine whether periods of time spent by
an H-1B nonimmigrant
worker in a specialty occupation outside the United States will be recaptured:
Periods of Time Outside the United States that May Be Recaptured by an H-1B Nonimmigrant Worker in a Specialty Occupation
214(g)(4) of the Act
states that “the period of authorized admission” may not exceed 6 years, and because “admission” is defined as “
the lawful entry of the alien into the United States after inspection and authorization by an immigration officer”
only time spent in the United States
as an H-1B counts towards the maximum. Thus, upon requesting an extension, the H-1B nonimmigrant can request that full days spent outside the U.S. during the period of petition validity be recaptured and added back to his or her total maximum period of stay. As always, it is the applicant/petitioner’s burden to demonstrate eligibility, and appropriate evidence, such as copies of passport stamps
, and/or plane tickets must be submitted. The applicant for extension seeking to recapture time spent outside the U.S. need not demonstrate that the time spent outside the U.S. was meaningfully interruptive of his or her H-1B stay. The reason for the absence is not relevant to the question of whether the time may be recaptured. Any trip of at least one 24-hour day outside the U.S. for any purpose, personal or business, can be recaptured. The applicant for extension must only demonstrate to the satisfact
ion of the adjudicator that he or she was outside the U.S. for the amount of time for which recapture is requested.
Matter of IT Ascent, EAC# 0404753189
, was designated as binding policy guidance on October 18, 2005. Officers should refer to the reasoning contained in this decision.
The burden of proof remains with the H-1B petitioner and/or the H-1B beneficiary to submit evidence documenting any and all exact periods of physical presence outside the United States when seeking an extension of petition validity and extension of stay as an H-1B nonimmigrant.
The petitioner and/or beneficiary are clearly in the best position to organize and submit evidence of the beneficiary’s departures from and reentry into the United States. While petitioners often submit a summary and/or charts of travel and the number or days spent out of the United States, which eases review of the accompanying documentation, petitioners are also required to submit independent documentary evidence establishing that the alien was outside of the United States during all the days, weeks, mon
ths etc. that he or she seeks to recapture (e.g. photocopies of passport stamps and/or Form I-94 arrival-departure records).
The fact that the burden may not be met for some claimed periods, or has been met for some claimed periods, has no bearing on the remaining claimed periods. Any periods of time for which the burden has been met may be added to the eligible period of admission upon approval of the application for extension of status. An alien may not be granted an extension of stay for periods of time that are not supported by independent documentary evidence.
A Request for Evidence should not be sent to the petitioner for any claimed periods unsupported by evidence
In some instances, the alien may not be granted the entire period of time requested because the evidence submitted does not establish eligibility for the entire period of stay requested. In those situations, the approval notice should be issued for the period of time for which eligibility has been demonstrated.
The status of an H-4 dependent of an H-1B nonimmigrant is subject to the same period of admission and limitations as the principal alien. For example, if an H-1B alien is able to recapture a two-week business trip abroad for each year for five years in a row (for a total of 10 weeks), then his or her H-4 dependents, if seeking extension of stay, should be given an extension of stay up to the new expiration of the H-1B alien's stay. The statute and regulations allow H-4 status only "if [the dependents] are
accompanying or following to join the beneficiary in the United States." If it appears that the dependent is not using or is not intending to use H-4 status primarily to accompany or follow to join the principal H-1B alien, such as a situation in which the principal only is physically present or intends to be physically present in the United States for a small proportion of his or her period of H-1B admission and the dependents are using H-4 status to evade the limitations on or eligibility rules of the no
nimmigrant options that otherwise would be available, then the H-4 extension of stay may be denied, limited or revoked on notice giving the H-4 the opportunity to provide evidence of the intention primarily to accompany the principal.
Officers involved in the adjudication of H-1B petitions are cautioned that the examples provided in this memorandum are not all inclusive. Situations may develop in the adjudication of certain petitions, which will require the adjudicating office to use discretion. Therefore, decisions on petitions for extension concerning this issue that contain unique or novel circumstances may be certified to the Administrative Appeals Office for review.
Requests for an Extension of H 1B Status under the Provisions of Section 104(c) of AC21 §104(c) for Aliens Subject to per Country Visa Limitations.
[Updated May 28, 2008]
USCIS interprets section
104(c) of AC21
as only applicable when an alien, who is the beneficiary of an approved
Form I 140
petition, is eligible to be granted lawful permanent resident status but for application of the per country limitations. Any petitioner seeking an H 1B extension on behalf of an H 1B alien beneficiary pursuant to section
104(c) of AC21
must thus establish that at the time of filing for such extension, the alien is not eligible to be granted lawful permanent resident status on account of the per country immigrant visa limitations.
USCIS will accept a copy of the H 1B alien beneficiary's
Form I 140
petition approval notice which shows that an immigrant visa is not immediately available to him or her based on the approved petition's priority date as evidence of the H 1B alien beneficiary's eligibility for an extension of H 1B status under the provisions of section
104(c) of AC21
Adjudicators are instructed to review the Department of State Immigrant Visa Bulletin that was in effect at the time of the filing of the
Form I 129
petition in which a request for a section
104(c) of AC21
H 1B extension request is made. If the H 1B alien beneficiary is shown to be ineligible to be granted lawful permanent resident status because of the per country visa limitations, then the H 1B extension request under the provisions of section
104(c) of AC21
may be granted for a maximum of three year increments, until such time as the alien's application for adjustment of status has been processed and a decision made thereupon.
(11) H 1B Portability Provisions of
of the INA and Section 105 of AC21. [Updated May 28, 2008]
of the INA provides that a nonimmigrant who was previously issued an H 1B visa or provided H 1B nonimmigrant status may begin working for a new H 1B employer as soon as that new employer files a nonfrivolous H 1B petition on the nonimmigrant's behalf, if:
The nonimmigrant was lawfully admitted to the United States;
The nonfrivolous petition for new employment was filed before the end of their period of authorized stay; and
The nonimmigrant has not been employed without authorization since his or her lawful admission to the United States, and before the filing of the nonfrivolous petition.
In order to port, an alien must meet all the requirements of of the INA, including the requirement that the new petition must be filed while the alien is in a "period of stay authorized by the Attorney General."
Successive H 1B portability petitions may be filed for an alien while the previous H 1B petitions remain pending (i.e. creating a "bridge" of H 1B petitions). However, to be approved every H 1B portability petition must separately meet the requirements for H 1B classification and for an extension of stay. In the event that the alien's nonimmigrant status has expired while the petitions are pending, the denial of any filing in the string of extension of stay and/or change of status filings undercuts the "b
ridge", meaning that any petition to extend or change status that was filed after the expiration of the alien's status that is denied will result in the denial of all successive requests to extend or change status.
The status of a dependent of a principal nonimmigrant who is working pursuant to portability benefits is linked to the status of the principal nonimmigrant.
Changes in Employment by H 1B Alien Beneficiary under the Provisions of
of the INA.
[Updated May 28, 2008]
The American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), Title IV of Div. C. of
Public Law 105-277
, was enacted on October 21, 1998. ACWIA provides for enhanced penalties against H 1B employers who violate attestations made on the LCA. Among these provisions for enhanced enforcement are measures designed to enable and encourage H 1B workers to report employers who violate certain attestations.
As a result,
of the Act requires the creation of a process under which an H 1B alien beneficiary who files a complaint regarding a violation of
and is otherwise eligible to remain and work in the United States may in some circumstances be allowed to seek other appropriate employment in the United States for a period not to exceed the maximum period of stay authorized for such nonimmigrant classification.
If credible documentary evidence is provided in support of an H 1B petition that the H 1B alien beneficiary faced retaliatory action from his or her employer based on a report regarding a violation of
of the INA, then USCIS adjudicators may consider any related loss of H 1B status by the alien as an "extraordinary circumstance" as defined by
8 CFR 214.1(c)(4)
. This may allow the alien time to acquire new H 1B employment and remain eligible to apply for a change of status or extension of stay notwithstanding the termination of employment or other retaliatory action by his or her employer.
(A) No employer subject to this subpart I or subpart H of this part shall intimidate, threaten, restrain, coerce, blacklist, discharge or in any other manner discriminate against an employee (which term includes a former employee or an applicant for employment) because the employee has-
(i) Disclosed information to the employer, or to any other person, that the employee reasonably believes evidences a violation of
of the INA or any regulation relating to sections 212(n) or (t), including this subpart I and subpart H of this part and any pertinent regulations of DHS or the Department of Justice; or
(ii) Cooperated or sought to cooperate in an investigation or other proceeding concerning the employer's compliance with the requirements of sections 212(n) or (t) of the INA or any regulation relating to sections 212(n) or (t).
In addition, adjudicators are reminded that the portability provisions of section 105 of AC21 may also apply to the whistleblower H 1B alien beneficiary should he or she choose to use them to seek new employment and obtain relief.
Exemptions Pursuant to
of the Act
[Chapter 31.3(g)(13) added June 6, 2006]
USCIS officers should comply with the following guidance to determine whether an alien is exempt from the H-1B cap under the provisions of 214(g)(5) of the Act, which reads:
The numerical limitations contained in paragraph (1)(A) shall not apply to any nonimmigrant alien issued a visa or otherwise provided status under section
(A) is employed (or has received an offer of employment) at an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 USC 1001(a)), or a related or affiliated nonprofit entity;
(B) is employed (or has received an offer of employment) at a nonprofit research organization or a governmental research organization.
Paragraphs (A) and (B) above are INA subsections. Paragraphs (A) and (B) are not separate outline headings in this chapter.
“Employed (or has received an offer of employment) at”
of the Act (Section 103 of AC21) exempt an alien from the H-1B cap if the alien is “employed (or has received an offer of employment) at “an institution of higher education, a related or affiliated nonprofit entity, a nonprofit research organization, or a governmental research organization (hereinafter a “qualifying institution”).”
Commonly, qualifying institutions petition on behalf of current or prospective H-1B employees and claim this exemption. In certain instances, petitioners that are not themselves a qualifying institution also claim this exemption because the alien beneficiary will perform all or a portion of the job duties “at” a qualifying institution. For purposes of this paragraph, such petitioners are referred to as “third party petitioners.”
A third party petitioner is one who petitions on behalf of an H-1B worker who will work “at” a qualifying institution, but where the alien is or will be employed by the third party petitioner, not the qualifying institution. These types of cases should be adjudicated based on the guidance provided below.
Congress deemed certain institutions worthy of an H-1B cap exemption because of the direct benefits they provide to the United States. Congressional intent was to exempt from the H-1B cap certain alien workers who could provide direct contributions to the United States through their work on behalf of institutions of higher education and related nonprofit entities, or nonprofit research organizations, or governmental research organizations. In effect, this statutory measure ensures that qualifying institut
ions have access to a continuous supply of H-1B workers without numerical limitation.
Congress chose to exempt from the numerical limitations in section
of the Act aliens who are employed “at” a qualifying institution, which is a broader category than aliens employed “by” a qualifying institution. This broader category may allow certain aliens who are not employed directly by a qualifying institution to be treated as cap exempt when needed to further the essential purposes of the qualifying institution.
Thus, if a petitioner is not itself a qualifying institution, the burden is on the petitioner to establish that that there is a logical nexus between the work predominately performed by the beneficiary and the normal mission of the qualifying entity. Petitioners must therefore demonstrate how the beneficiary’s duties are directly and predominately related to, and in furtherance of, the normal, primary or essential purpose, mission, objectives or function of the qualifying institution, namely, higher educat
ion or nonprofit or governmental research.
In many instances, third-party petitioners seeking exemptions from the H-1B cap are companies that have contracts with qualifying federal agencies (or other qualifying institutions) which require the placement of professionals on-site at the particular agency. The H-1B employees generally perform work directly related to the purposes of the particular qualifying federal agency or entity and thus may qualify for an exemption to the H-1B cap.
As qualifying third-party employment can occur in a variety of other ways, below is a non-exhaustive list of examples to assist adjudicators in determining cap exemption eligibility:
Company A, a for-profit consultant firm that would not otherwise be a qualifying institution, files an H-1B petition on behalf of an employee working directly for the firm. The H-1B petition describes the alien beneficiary’s job duties, which will be performed on-site at a qualifying governmental research organization pursuant to a joint-agreement between the two entities.
Company A submits evidence in support of its H-1B petition demonstrating that the alien beneficiary will be working on a research project performing duties similar to those performed by actual employees of the governmental research organization in furtherance of the qualifying entity’s mission. If the alien beneficiary was sponsored directly by the government research organization, he or she would clearly qualify for the H-1B cap exemption.
Would the alien beneficiary qualify for the H-1B exemption?
Yes. In this case, the alien beneficiary would be exempt from the H-1B cap because the alien beneficiary will perform research duties that would or could otherwise be performed by employees of the qualifying institution, in furtherance of the qualifying institution’s primary mission.
Company B, a for-profit hospital and research center that would not otherwise be a qualifying institution, files an H-1B petition on behalf of a renowned oncologist who will be a direct employee of the hospital and whose duties will consist of clinical treatment of cancer patients and laboratory research on a new medication to treat liver cancer.
Company B maintains a relationship with a qualifying non-profit research organization dedicated to finding a cure for liver cancer, whereby Company B occasionally provides resources and data in exchange for access to the non-profit’s national database on protocols for treating liver cancer.
Company B’s new oncologist will spend 55 percent (i.e., a majority) of her time working on-site at the non-profit research organization conducting research and laboratory experiments on the new medication to treat liver cancer and accessing the national database.
The oncologist will be performing sophisticated research and laboratory experiments that are not normally conducted by employees of the non-profit research organization but that, nonetheless, directly and predominantly further the normal, primary, or essential purpose, mission, objectives or function of the non-profit organization. Company B and the non-profit entity will collaborate on a joint paper publishing the research.
Would the oncologist qualify for an H-1B cap exemption based on this employment?
Yes. In this case, the oncologist’s work clearly furthers the overall mission of the qualifying non-profit research organization and benefits the United States. The fact that Company B and the qualifying non-profit entity share a cooperative relationship helps establish a sufficient nexus between the oncologist’s work and the normal, primary, or essential purpose, mission, objectives or function of the non-profit organization.
Further, the oncologist will spend more than half of her time working physically on-site “at” the qualifying entity.
A medical fellow in pediatrics has been employed at a qualifying non-profit university medical center for two years in H-1B status. At the end of the fellowship, the doctor will become a member of Company C, a private pediatrics practice group which has its primary offices within the university medical center and predominantly trains medical students and treats patients in the medical center.
The doctor will be doing exactly the same work that he did during his fellowship, including remaining on the university medical center’s faculty, but for reasons related to hospital billing practices and medial malpractice insurance requirements, his technical, and therefore petitioning, employer will be the private pediatrics practice group.
Would the doctor qualify for an H-1B cap exemption based on this employment?
Yes. In this case, the doctor would be exempt from the H-1B cap because the conditions of employment demonstrate that the doctor will be performing the same work that he performed while employed directly by the qualifying university medical center. Thus, the H-1B employment directly furthers the primary mission of the hospital because the doctor will remain on the university medical center’s faculty, and will continue to educate and train its medical students and treat patients at the medical center.
Company D, a for-profit market research firm that would not otherwise be a qualifying institution, files an H-1B petition on behalf of a direct employee. The H-1B petition states that the alien beneficiary will be conducting a specific kind of market research on-site at a qualifying university. In addition, the petition states that the university has a specialized research tool that can only be accessed from its facilities and that the alien beneficiary’s research will be conducted for the benefit of the
petitioner’s clients and business, and not for the university.
Would the alien beneficiary qualify for the H-1B exemption based on this employment?
No. In this case, the alien would not qualify for a cap exemption as he or she is only physically located “at” the qualifying institution and no nexus has been demonstrated between the work performed by the beneficiary and the normal purpose of the qualifying entity. The alien beneficiary will not perform work for the benefit of the qualifying institution, but rather for the for-profit firm.
Institution of Higher Education or Related or Affiliated Nonprofit Entity
The H-1B regulations, in the context of qualifying for the H-1B fee exemption, directly adopt the definition of institution of Higher Education set forth in section 101(a) of the Higher Education Act of 1965. Adjudicators should adopt the same definition for an institution of Higher Education for purposes of exemptions from the H-1B cap.
In addition, the H-1B regulations define what is an affiliated nonprofit entity for purposes of the H-1B fee exemptions. Adjudicators should apply the same definitions to determine whether an entity qualifies as an affiliated nonprofit entity for purposes of exemption from the H-1B cap. In particular, as outlined in
8 CFR 214.2(h)(19)(iii)(B)
, the following definition applies:
An affiliated or related nonprofit entity
. A nonprofit entity (including but not limited to hospitals and medical or research institutions) that is connected or associated with an institution of higher education, through shared ownership or control by the same board or federation operated by an institution of higher education, or attached to an institution of higher education as a member, branch, cooperative, or subsidiary.
Definitions of Nonprofit Research Organization or a Governmental Research Organization
This phrase has been defined specifically within the H-1B regulations in the context of qualifying for the H-1B fee exemption. Adjudicators should apply the same definitions to determine whether an entity qualifies as a nonprofit research organization or governmental research organization for purposes of exemption from the H-1B cap. In particular, as outlined in
8 C.F.R. 214.2(h)(19)(iii)(C)
, the following definitions apply:
A nonprofit research organization or governmental research organization
. A nonprofit research organization is an organization that is primarily engaged in basic research and/or applied research. A governmental research organization is a United States Government entity whose primary mission is the performance or promotion of basic research and/or applied research. Basic research is general research to gain more comprehensive knowledge or understanding of the subject under study, without specific applications in mind. Basic research is also research that advances scientific know
ledge, but does not have specific immediate commercial objectives although it may be in fields of present or potential commercial interest. It may include research and investigation in the sciences, social sciences, or humanities. Applied research is research to gain knowledge or understanding to determine the means by which a specific, recognized need may be met. Applied research includes investigations oriented to discovering new scientific knowledge that has specific commercial objectives with respect to
products, processes, or services. It may include research and investigation in the sciences, social sciences, or humanities.
(D) Requests for Changes in Employment or Concurrent Employment Requests for Certain Cap-Exempt Aliens.
[Updated May 28, 2008]
H 1B "cap exempt" petitions, as referenced here, include petitions filed by:
Institutions of higher education, as defined in section 101(a) of the Higher Education Act of 1965, 20 U.S.C. 1001(a);
Nonprofit organizations or entities related to or affiliated with institutions of higher education; and
Petitions filed on behalf of aliens who will be employed by certain types of educational, nonprofit or governmental organizations (these types of petitioners are normally referred to as "cap-exempt" because an H-1B alien employed by such an entity is not subject to the H-1B numerical limitations) are not counted towards the numerical limitations in
of the INA. See sections
of the INA; and
8 CFR 214.2 (h)(8)(A)
Pursuant to the provisions of
of the INA, USCIS has not required that an alien who is cap exempt by virtue of the above types of employment, be counted towards the limitation contained in
of the INA if they accept concurrent employment with a non-exempt employer. Section
of the INA reads as follows:
Any alien who ceases to be employed by an employer described in paragraph (5)(A) shall, if employed as a nonimmigrant alien described in section 1101(a)(15)(H)(i)(b) of this title, who has not previously been counted toward the numerical limitations contained in paragraph (1)(A), be counted toward those limitations the first time the alien is employed by an employer other than one described in paragraph (5). Emphasis added.
Documentary evidence, such as a current letter of employment or a recent pay stub, should be provided in support of such a concurrent employment petition at the time that it is filed with USCIS in order to confirm that the H 1B alien beneficiary is still employed in a cap-exempt position.
At the time of filing of a concurrent employment H 1B petition that is subject to the numerical limitation under
of the INA:
If the H 1B alien beneficiary has not "ceased" to be employed in a cap-exempt position pursuant to
of the INA, then he or she will not be counted towards the cap.
If the H 1B alien beneficiary has "ceased" to be employed in a cap-exempt position, then the alien will be subject to the H 1B numerical limitation, and the concurrent employment petition may not be approved unless a cap number is available to the alien beneficiary.
If USCIS determines that an H 1B alien beneficiary has ceased to be employed in a cap-exempt position after a new cap-subject H 1B petition has been approved on his or her behalf, USCIS will deny any subsequent cap-subject H 1B petition filed on behalf of the H 1B alien beneficiary if no cap numbers are available.
Cap Exemption for Employment and Services Performed in the Commonwealth of the Northern Mariana Islands (CNMI) and Guam
The Consolidated Natural Resources Act of 2008 (CNRA),
Public Law 110-229
, includes a provision exempting H-1B workers performing labor or services in the CNMI and Guam from the H-1B numerical limitation in
of the INA (aka the “H-1B cap”). Upon the CNRA’s implementation on November 28, 2009, H-1B workers in Guam and the CNMI are exempt from the statutory numerical limitation for H-1B classification from November 28, 2009 to December 31, 2014.
Section 6(b) of Public Law 94-241, as added by
of the CNRA.
This H-1B cap exemption does not apply to any employment to be performed outside of the CNMI or Guam. As such, to qualify for this exemption, the petition must include a Labor Condition Application (LCA) for work locations in the CNMI and/or Guam only.
An H-1B worker granted H-1B status under this CNMI/Guam cap exemption who ceases to be employed in H-1B classification solely in the CNMI and/or Guam shall be deemed subject to the H-1B cap. A subsequent petition filed for such an H-1B worker, i.e. a change of employer petition with a request for an extension of stay, requesting employment located
of CNMI and/or Guam is subject to the H-1B cap.
H-1B “Remainder” Time
USCIS officers shall comply with the following guidance regarding requests for time in H-1B status on the behalf of an alien who
exhausted his or her H-1B maximum period of admission and who has been absent from the United States for longer than a year.
of the INA provides that “the period of authorized admission as [an H-1B] nonimmigrant may not exceed 6 years.” Section
of the INA provides, in pertinent part, as follows:
Any alien who has already been counted within the 6 years prior to the approval of a petition described in subsection (c), toward the numerical limitations of paragraph (1)(A) shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed. Where multiple petitions are approved for 1 alien, that alien shall be counted only once.
H-1 Recapture of Time Spent Outside the United States,
AAO Adopted Decision 06-0001
(Sept. 2, 2005),
USCIS has confirmed that the six-year period of maximum authorized admission accrues only during periods when the alien is lawfully admitted and physically present in the United States.
The regulations at
8 CFR 214.2(h)(13)(i)
provides that when an alien has reached the maximum period of admission, a new petition may be approved only if the alien has remained outside the United States for one year. The statute, regulations, and current policy guidance, however, do not clearly address situations where an alien
exhaust his or her maximum six-year period of admission.
There have been instances where an alien who was previously admitted to the United States in H-1B status, but did not exhaust his or her entire period of admission, seeks readmission to the United States in H-1B status for the “remainder” of his or her initial six-year period of maximum admission, rather than seeking a new six-year period of admission. Pending the AC21 regulations, USCIS for now will allow an alien in the situation described above to elect either to:
be re-admitted for the “remainder” of the initial six-year admission period without being subject to the H-1B cap if previously counted; or
seek to be admitted as a “new” H-1B alien subject to the H-1B cap.
This new “remainder” policy does not affect an H-1B alien who was previously admitted to the United States, but who has not been absent from the United States for more than one year. Such an alien would not be eligible for a new six-year period of admission and therefore may only seek readmission based on time remaining against his or her initial six-year period of admission.
Specifically, the “remainder” period of the initial six-year admission period refers to the full six-year period of admission minus the period of time that the alien previously spent in the United States in valid H-1B status.
For example, an alien who spent five years in the United States in H-1B status (from January 1, 1999 - December 31, 2004), and then remained outside the United States for all of 2005, could seek to be admitted in January 2006 for the “remainder” of the initial six-year period, i.e., a total of one year.
If the alien was previously counted toward the H-1B numerical limitations in relation to the time that has accrued against the six-year maximum period of admission, the alien would not be subject to the H-1B cap.
alien was not previously counted against the H-1B numerical limitations (i.e. because cap-exempt), the alien will be counted against the H-1B cap unless he or she is eligible for another exemption.
Alternatively, admission as a “new” H-1B alien refers to a petition filed on behalf of an H-1B alien who seeks to qualify for a new six-year admission period (without regard to the alien’s eligibility for any “remaining” admission period) after having been outside the United States for more than one year.
For example, the alien who spent five years in the United States in H-1B status (from January 1, 1999 - December 31, 2004), and then remained outside the United States for all of 2005, is eligible to apply for a “new” period of H-1B status based on his or her absence of at least one year from the United States. Most petitioners electing this option will seek a three-year H-1B petition approval, allowing for the possibility of later seeking a three-year H-1B extension.
“New” H-1B aliens are subject to the H-1B numerical limitations unless they qualify for an exemption. See Sections
of the INA.
he burden of proof rests with the alien to show that he or she has been outside the United States for one year or more and is eligible for a new six-year period, or that he or she held H-1B status in the past and is eligible to apply for admission for the H-1B “remainder” time. Petitions should be submitted with documentary evidence of previous H-1B status such as
Form I-94 arrival-departure records, Form I-797 Approval notices and/or H-1B visa stamps
Evidence of Employer-Employee Relationship
A. Factors to Demonstrate the Employer-Employee Relationship
USCIS must look at a number of factors to determine whether a valid employer-employee relationship exists. Engaging a person to work in the United States is more than merely paying the wage or placing that person on the payroll. In considering whether or not there is a valid “employer-employee relationship” for purposes of H-1B petition adjudication, USCIS must determine if the employer has a sufficient level of control over the employee.
The petitioner must be able to establish that it has the
right to control
over when, where, and how the beneficiary performs the job and USCIS will consider the following questions to make such a determination with no one factor being decisive.
Does the petitioner supervise the beneficiary and is such supervision off-site or on-site?
If the supervision is off-site, how does the petitioner maintain such supervision,
weekly calls, reporting back to main office routinely, or site visits by the petitioner?
Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required?
Does the petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment?
Does the petitioner hire, pay, and have the ability to fire the beneficiary?
Does the petitioner evaluate the work-product of the beneficiary, i.e. progress/performance reviews?
Does the petitioner claim the beneficiary for tax purposes?
Does the petitioner provide the beneficiary any type of employee benefits?
Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment?
Does the beneficiary produce an end-product that is directly linked to the petitioner’s line of business?
Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished?
The common law is flexible about how these factors are to be weighed. The petitioner will have met the relationship test, if, in the totality of the circumstances, a petitioner is able to present evidence to establish its right to control the beneficiary’s employment. In assessing the requisite degree of control, the officer should be mindful of the nature of the petitioner’s business and the type of work of the beneficiary. The petitioner must also be able to establish that the right to control the bene
ficiary’s work will continue to exist throughout the duration of the beneficiary’s employment term with the petitioner.
The Following Scenarios Would Present
A Valid Employer-Employee Relationship
[Exercise of Actual Control Scenario]
The beneficiary works at an office location owned/leased by the petitioner, the beneficiary reports directly to the petitioner on a daily basis, the petitioner sets the work schedule of the beneficiary, the beneficiary uses the petitioner’s tools/instrumentalities to perform the duties of employment, and the petitioner directly reviews the work-product of the beneficiary. The petitioner claims the beneficiary for tax purposes and provides medical benefits to the beneficiary.
Temporary/Occasional Off-Site Employment
[Right to Control Scenario]
The petitioner is an accounting firm with numerous clients. The beneficiary is an accountant. The beneficiary is required to travel to different client sites for auditing purposes. In performing such audits, the beneficiary must use established firm practices. If the beneficiary travels to an off-site location outside the geographic location of the employer to perform an audit, the petitioner provides food and lodging costs to the beneficiary. The beneficiary reports to a centralized office when not perf
orming audits for clients and has an assigned office space. The beneficiary is paid by the petitioner and receives employee benefits from the petitioner.
Long-Term/Permanent Off-Site Employment
[Right to Control Specified and Actual Control is Exercised]
The petitioner is an architectural firm and the beneficiary is an architect. The petitioner has a contract with a client to build a structure in a location out of state from the petitioner’s main offices. The petitioner will place its architects and other staff at the off-site location while the project is being completed. The contract between the petitioner and client states that the petitioner will manage its employees at the off-site location. The petitioner provides the instruments and tools used to
complete the project, the beneficiary reports directly to the petitioner for assignments, and progress reviews of the beneficiary are completed by the petitioner. The underlying contract states that the petitioner has the right to ultimate control of the beneficiary’s work.
Long Term Placement at a Third-Party Work Site
[Right to Control Specified and Actual Control is Exercised]
The petitioner is a computer software development company which has contracted with another, unrelated company to develop an in-house computer program to track its merchandise, using the petitioner’s proprietary software and expertise. In order to complete this project, petitioner has contracted to place software engineers at the client’s main warehouse where they will develop a computer system for the client using the petitioner’s software designs. The beneficiary is a software engineer who has been offe
red employment to fulfill the needs of the contract in place between the petitioner and the client. The beneficiary performs his duties at the client company’s facility. While the beneficiary is at the client company’s facility, the beneficiary reports weekly to a manager who is employed by the petitioner. The beneficiary is paid by the petitioner and receives employee benefits from the petitioner.
The Following Scenarios Would Not Present
A Valid Employer-Employee Relationship
[No Separation between Individual and Employing Entity;
No Independent Control Exercised and No Right to Control Exists]
The petitioner is a fashion merchandising company that is owned by the beneficiary. The beneficiary is a fashion analyst. The beneficiary is the sole operator, manager, and employee of the petitioning company. The beneficiary cannot be fired by the petitioning company. There is no outside entity which can exercise control over the beneficiary.
The petitioner has not provided evidence that that the corporation, and not the beneficiary herself, will be controlling her work
[Petitioner Has No Right to Control; No Exercise of Control]
The beneficiary is a sales representative. The petitioner is a company that designs and manufactures skis. The beneficiary sells these skis for the petitioner and works on commission. The beneficiary also sells skis for other companies that design and manufacture skis that are independent of the petitioner. The petitioner does not claim the beneficiary as an employee for tax purposes. The petitioner does not control when, where, or how the beneficiary sells its or any other manufacturer’s products. Th
e petitioner does not set the work schedule of the beneficiary and does not conduct performance reviews of the beneficiary.
[Petitioner Has No Right to Control; No Exercise of Control]
The petitioner is a computer consulting company. The petitioner has contracts with numerous outside companies in which it supplies these companies with employees to fulfill specific staffing needs. The specific positions are not outlined in the contract between the petitioner and the third-party company but are staffed on an as-needed basis.
The beneficiary is a computer analyst. The beneficiary has been assigned to work for the third-party company to fill a core position to maintain the third-party company’s payroll. Once placed at the client company, the beneficiary reports to a manager who works for the third-party company. The beneficiary does not report to the petitioner for work assignments, and all work assignments are determined by the third-party company.
The petitioner does not control how the beneficiary will complete daily tasks, and no propriety information of the petitioner is used by the beneficiary to complete any work assignments. The beneficiary’s end-product, the payroll, is not in any way related to the petitioner’s line of business, which is computer consulting. The beneficiary’s progress reviews are completed by the client company, not the petitioner.
The Following Is a Scenario of a Regulatory Exception
Where The Petitioner Is Not The Employer
[Agent Has No Right to Control; Fashion House
Has and Exercises Right to Control]
The petitioner is a reputable modeling agency that books models for various modeling jobs at different venues to include fashion houses and photo shoots. The beneficiary is a distinguished runway model. The petitioner and beneficiary have a contract between one another that includes such terms as to how the agency will advise, counsel, and promote the model for fashion runway shows. The contract between the petitioner and beneficiary states that the petitioner will receive a percentage of the beneficiary
’s fees when the beneficiary is booked for a runway show. When the beneficiary is booked for a runway show, the beneficiary can negotiate pay with the fashion house. The fashion house (actual employer) controls when, where, and how the model will perform her duties while engaged in the runway shows for the fashion house.
B. Documentation to Establish the Employer-Employee Relationship
Before approving H-1B nonimmigrant visa petitions, “the director shall consider all the evidence submitted and such other evidence as he or she may independently require to assist his or her adjudication.”
In addition to all other regulatory requirements, including that the petitioner provide an LCA specific to each location where the beneficiary will be working, the petitioner must establish the employer-employee relationship described above. Such evidence should provide sufficient detail that the employer and beneficiary are engaged in a valid employer-employee relationship. If it is determined that the employer will not have the right to control the employee in the manner described below, the petition
may be denied for failure of the employer to satisfy the requirements of being a United States employer under
8 CFR 214.2(h)(4)(ii)
The petitioner must clearly show that an employer-employee relationship will exist between the petitioner and beneficiary, and establish that the employer has the right to control the beneficiary’s work, including the ability to hire, fire and supervise the beneficiary. The petitioner must also be responsible for the overall direction of the beneficiary’s work.
Lastly, the petitioner should be able to establish that the above elements will continue to exist throughout the duration of the requested H-1B validity period. The petitioner can demonstrate an employer-employee relationship by providing a combination of the following or similar types of evidence:
A complete itinerary of services or engagements that specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishment, venues, or locations where the services will be performed for the period of time requested;
Copy of signed Employment Agreement between the petitioner and beneficiary detailing the terms and conditions of employment;
Copy of an employment offer letter that clearly describes the nature of the employer-employee relationship and the services to be performed by the beneficiary;
Copy of relevant portions of valid contracts between the petitioner and a client (in which the petitioner has entered into a business agreement for which the petitioner’s employees will be utilized) that establishes that while the petitioner’s employees are placed at the third-party worksite, the petitioner will continue to have the right to control its employees;
Copies of signed contractual agreements, statements of work, work orders, service agreements, and letters between the petitioner and the authorized officials of the ultimate end-client companies where the work will actually be performed by the beneficiary, which provide information such as a detailed description of the duties the beneficiary will perform, the qualifications that are required to perform the job duties, salary or wages paid, hours worked, benefits, a brief description of who will supervise th
e beneficiary and their duties, and any other related evidence;
Copy of position description or any other documentation that describes the skills required to perform the job offered, the source of the instrumentalities and tools needed to perform the job, the product to be developed or the service to be provided, the location where the beneficiary will perform the duties, the duration of the relationship between the petitioner and beneficiary, whether the petitioner has the right to assign additional duties, the extent of petitioner’s discretion over when and how long t
he beneficiary will work, the method of payment, the petitioner’s role in paying and hiring assistants to be utilized by the beneficiary, whether the work to be performed is part of the regular business of the petitioner, the provision of employee benefits, and the tax treatment of the beneficiary in relation to the petitioner;
A description of the performance review process; and/or
Copy of petitioner’s organizational chart, demonstrating beneficiary’s supervisory chain.
An H-1B petitioner seeking to extend H-1B employment for a beneficiary must continue to establish that a valid employer-employee relationship exists. The petitioner can do so by providing evidence that the petitioner continues to have the right to control the work of the beneficiary, as described above.
The petitioner may also include a combination of the following or similar evidence to document that it maintained a valid employer-employee relationship with the beneficiary throughout the initial H-1B status approval period:
Copies of the beneficiary’s pay records (leave and earnings statements, and pay stubs, etc.) for the period of the previously approved H-1B status;
the beneficiary’s payroll summaries and/or Form W-2s, evidencing wages paid to the beneficiary during the period of previously approved H-1B status;
Copy of Time Sheets during the period of previously approved H-1B status;
Copy of prior years’ work schedules;
Documentary examples of work product created or produced by the beneficiary for the past H-1B validity period, (i.e., copies of: business plans, reports, presentations, evaluations, recommendations, critical reviews, promotional materials, designs, blueprints, newspaper articles, web-site text, news copy, photographs of prototypes, etc.). Note: The materials must clearly substantiate the author and date created;
Copy of dated performance review(s); and/or
Copy of any employment history records, including but not limited to, documentation showing date of hire, dates of job changes, i.e. promotions, demotions, transfers, layoffs, and pay changes with effective dates.
If USCIS determines, while adjudicating the extension petition, that the petitioner failed to maintain a valid employer-employee relationship with the beneficiary throughout the initial approval period, or violated any other terms of its prior H-1B petition, the extension petition may be denied unless there is a compelling reason to approve the new petition (e.g., the petitioner is able to demonstrate that it did not meet all the terms and conditions through no fault of its own). Such a limited exception wi
ll be made solely on a case-by-case basis.
USCIS requests the documentation described above to increase H-1B program compliance and curtail violations. As always, USCIS maintains the authority to do pre- or post-adjudication compliance review site visits for either initial or extension petitions.
C. Request for Evidence to Establish Employer-Employee Relationship
USCIS may issue a Request For Evidence (RFE) when USCIS believes that the petitioner has failed to establish eligibility for the benefit sought, including in cases where the petitioner has failed to establish that a valid employer-employee relationship exists and will continue to exist throughout the duration of the beneficiary’s employment term with the employer.
Such RFEs, however, must specifically state what is at issue (e.g. the petitioner has failed to establish through evidence that a valid employer-employee relationship exists) and be
to request specific illustrative types of evidence from the petitioner that goes directly to what USCIS deems as deficient. Officers should first carefully review all the evidence provided with the H-1B petition to determine which required elements have not been sufficiently established by the petitioner.
The RFE should neither mandate that a specific type of evidence be provided, unless provided for by regulations (e.g. an itinerary of service dates and locations), nor should it request information that has already been provided in the petition. Officers should state what element the petitioner has failed to establish and provide examples of documentation that could be provided to establish H-1B eligibility.
D. Compliance with 8 CFR 214.2(h)(2)(i)(B)
Not only must a petitioner establish that a valid employer-employee relationship exists and will continue to exist throughout the validity period of the H-1B petition, the petitioner must continue to comply with
8 CFR 214.2(h)(2)(i)(B)
when a beneficiary is to be placed at more than one work location to perform services.
To satisfy the requirements of 8 CFR 214.2(h)(2)(i)(B), the petitioner must submit a complete itinerary of services or engagements that specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishment, venues, or locations where the services will be performed for the period of time requested.
8 CFR 214.2(h)(2)(i)(B)
assists USCIS in determining that the petitioner has concrete plans in place for a particular beneficiary, that the beneficiary is performing duties in a specialty occupation, and that the beneficiary is not being “benched” without pay between assignments.
(h) Additional Fee Required by Public Law 111-230. Public Law 111-230, enacted August 13, 2010, requires the submission of an additional fee of $2,000 for certain petitions seeking H-1B classification.
(1) Definition of Employer. To determine who is subject to the additional fee of $2,000, USCIS will apply the definition of "employer" found at 8 CFR § 214.2(h)(4)(ii), which states:
[A] person, firm, corporation, or other association, or organization within the United States which:
(1) engages a person to work within the United States;
(2) has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, supervise, or otherwise control the work of any such employee; and
(3) has an Internal Revenue Service Tax Identification Number.
The use of this definition for purposes of determining the application of this new fee does not extend or authorize its application beyond Public Law 111-230 and the H-1B rules and regulations.
(2) Counting Full-time and Part-time Employees. For the purposes of Public Law 111-230, all employees, whether full-time or part-time, will count towards the calculation of whether an employer is subject to the new fee.
(3) U.S. and Foreign Payrolls. When calculating the percentage of employees in H-1B or L-1 status, all employees in the United States, regardless of whether they are paid through a U.S. or foreign payroll, will count toward the calculation.
(4) Treatment of Petitions Filed Before Publication of Revised Forms. If either an initial petition for H-1B classification or an H-1B petition requesting a change of employer is filed before the revised Form I-129 is published, the adjudicator wil review any explanation or supporting evidence to determine whether the fee required by Public Law 111-230 applies to the petition, as explained in the following chart:
|The H-1B petition is postmarked before August 14, 2010
||The fee does not apply; adjudicator can adjudicate the case.
|The H-1B petition seeking either (a) initial grant of nonimmigrant classification for the beneficiary or (b) authorization for an alien already classified as an H-1B nonimmigrant to change employers is postmarked on or after August 14, 2010 through, and including, September 30, 2014.
||The petitioner has paid the fee required by P.L. 111-230 OR the petitioner has attached a statement or evidence that it is exempt from the fee required by P.L. 111-230.
||The adjudicator can adjudicate the case.
|The petitioner has not paid the fee required by P.L. 111-230 AND the petitioner has not attached a statement or evidence that it is exempt from the fee required by P.L. 111-230.
||The employer has fewer than 50 employees in the United States.
||The fee does not apply, the adjudicator can adjudicate the case.
|The employer has 50 or more employees in the United States.
||50% or fewer of the employees in the U.S. are in H-1B, L-1A, or L-1B nonimmigrant status.
||The fee does not apply, adjudicator can adjudicate the case.
|More than 50% of the employees in the U.S. are in H-1B, L-1A, or L-1B nonimmigrant status.
||The fee DOES apply. The adjudicator must issue an RFE explaining that the petitioner must either submit the fee or provide evidence that it is, in fact, not subject to the fee.
|The adjudicator CANNOT determine from other documents submitted whether the fee required by P.L. 111-230 applies
||The adjudicator must issue an RFE explaining the provisions of P.L. 111-230 and informing the petitioner that he or she must submit either the fee or a statement or other evidence as to why the fee does not apply.
(5) Composition of Request for Evidence (RFE). If the fee applies but was not collected or if the adjudicator cannot determine whether the fee applies, the adjudicator should issue an RFE to the petitioner soliciting the additional fee or a statement or other evidence that the fee does not apply. The RFE should also cover any other deficiencies in the filing.
An RFE issued to address only the new fee, should provide the petitioner with a maximum of 30 days to respond to the RFE. If the RFE addresses other deficiencies that would normally allow for more time to respond, then the RFE may provide more than 30 days.
The RFE will inform the petitioner that it must submit an additional fee if it employes 50 or more individuals in the United States and over 50% of those employees are in H-1B, L-1A, or L-1B nonimmigrant status.
- The adjudicator must deny the petition if the petitioner fails to respond to the RFE. (Previously submitted fees will not be refunded.)
- If the petitioner responds to the RFE and indiciates that it is not subject to the fee, but there are discrepeancies that indicate otherwise, further clarifying information may be requested, or in certain cases, a notice of intent to deny (NOID) may be issued.
- A petition cannot be approved if the petitioner responds to the RFE and provides evidence that it is subject to the additional fee, but fails to submit the additional fee with the response. (If a petition is denied, previously submitted fees will not be refunded.)
(6) Treatment of Petitions Once Revised Form I-129 is Published. After the revised Form I-129 is implemented, an H-1B petition subject to the additional fee that is submitted without the fee will be rejected. Rejected filings do not retain a filing date. If, after the revised form is implemented, an adjudicator encounters an H-1B petition that was receipted without the additional fee and determines that the fee was required, the adjudicator should issue a NOID soliciting the additional fee. Whenever possible, the notice should cover any other deficiencies in the filing.
(7) Submission of Inaccurate Statement(s) by Petitioner to Avoid Payment of Fee. The adjudicator should follow local procedures to refer to the Center fraud Detection Office (CFDO) any petition where there is information or documentation to substantiate that the petitioner has inaccurately presented material facts in the petition and supporting documentation to avoid paying the additional fee.
Footnotes for Chapter 31.3
The right to control the beneficiary is different from actual control. An employer may have the right to control the beneficiary's job-related duties and yet not exercise actual control over each function performed by that beneficiary. The employer-employee relationship hinges on the right to control the beneficiary
The following scenarios are meant to be illustrative examples and are not exhaustive. Officers may see a variety of situations and factors when reviewing an H-1B petition.
The following scenarios are meant to be illustrative examples and are not exhaustive. Officers may see a variety of situations and factors when reviewing an H-1B petition.
USCIS acknowledges that a sole stockholder of a corporation can be employed by that corporation as the corporation is a separate legal entity from its owners and even its sole owner. See Matter of Aphrodite, 17 I&N Dec. 530 (BIA 1980). [
] However, an H-1B beneficiary/employee who owns a majority of the sponsoring entity and who reports to no one but him or herself may not be able to establish that a valid employment relationship exists in that the beneficiary, who is also the petitioner, cannot establish the requisite "control". See generally Administrator, Wage and Hour Division v. Avenue Dental Care, 6-LCA-29 (ALJ June 28, 2007) at 20-21.
The Administrative Appeals Office (AAO) of USCIS has issued an unpublished decision on the issue of whether a beneficiary may be "employed" by the petitioner even though she is the sole owner and operator of the enterprise. The unpublished decisions of the AAO correctly determined that corporations are separate and distinct from their stockholders and that a corporation may petition for, and hire, their principal stockholders as H-1B temporary employees.
However, the unpublished AAO decision did not address how, or whether, petitioners must establish that such beneficiaries are bona fide "employees" of "United States employers" having an "employer-employee relationship." The AAO decision did not reach this pivotal analysis and thus, while it is correct that a petitioner may employ and seek H-1B classification for a beneficiary who happens to have a significant ownership interest in a petitioner, this does not automatically mean that the beneficiary is a bo
na fide employee.
8 CFR 214.2(h)(2)(i)(F)
, it is also possible for an "agent" who may not be the actual employer of the H-1B temporary employee to file a petition on behalf of the actual employer and the beneficiary. The beneficiary must be one who is traditionally self-employed or who uses agents to arrange short-term employment on their behalf with numerous employers. However, as discussed below, the fact that a petition is filed by an agent does not change the requirement that the end-employer have a valid employer-employee relationship with
In this context, an extension petition refers to a petition filed by the same petitioner to extend H-1B status without a material change in the terms of employment.