How to qualify for H-1B visa petition
Tao Zhang, Esq.
April 1st is the first day to submit H-1B petitions subject to H-1B quotas. With the advent of this day, many college graduates or personnel currently possessing the OPT status hope to apply as soon as possible so that they would be able to have a place in the 2014 H-1B quota. To this end, I would like to use this article to touch base on some of the commonly occurring problems as well as the strategies to handle them, in order to help those that are planning to petition for a H-1B visa.
I. Specialty Occupation
The most basic requirement for H-1B petition is that the position used to petition for H-1B must be a specialty occupation. The law categorizes specialty occupation as a position that minimally requires a Bachelor’s degree such as accountants, computer programmers, engineers, financial analysts, actuaries, etc. If the petitioned position minimally requires only high school diploma or associate’s degree, such as sales, technicians, administrative assistants, secretaries, and etc., then the position is not in compliance with the conditions of H-1B petition. Keep in mind that this requirement is for the petitioned position itself and not for whether the hired individual possesses such a degree or not. For example, a medical institution submitted an H-1B application for a clinical laboratory technician; the technician has earned a Bachelor’s degree in biology. Medical and clinical laboratory technician positions usually require an associate’s degree or relevant work experience, and even though the technician has a Bachelor’s degree, the H-1B application can be denied because the petitioned position does not meet the H-1B requirement of specialty occupation.
In the recent years, the USCIS became more and more stringent when adjudicating H-1B petitions. Some traditionally acceptable positions which in the past regularly received H-1B approvals, such as Financial Analyst, System Analyst, Public Relations Specialist, etc., have now been repeatedly questioned by immigrant officers whether these occupations count as specialty occupations or not, and we have even heard of many cases that were denied because of this confusion. Last year, our firm represented a H-1B petition filing for a Financial Specialist position and received a RFE notice requesting additional evidence to prove that this Financial Specialist position minimally requires a Bachelor’s degree. For this, we recommended the client to prepare a much more detailed letter explaining the complexities of the position and why it minimally requires a Bachelor’s degree. We also recommended the client to collect some expert testimonies as well as the lowest education requirement for some similar positions in the same industry to help support that this particular position is a specialty occupation. A week after we submitted our RFE response, the USCIS approved this H-1B petition.
II. Prevailing Wage Requirement
After determining the petitioned H-1B position is a specialty occupation, we need to see if the salary that the employer agrees to pay the beneficiary 100% satisfies the Department of Labor’s prevailing wage requirement for such a position, which is the other basic condition that must be met by H-1B petition. Here we will focus on what choices an employer has and how to deal with the issues if the beneficiary’s salary does not fully meet the prevailing wage requirement:
a. The possibility of changing fringe benefits to cash to add to the salary
Most companies, other than salary, would provide the employees with some fringe benefits such as 401K retirement plan, healthcare insurance, life insurance, and etc. If the beneficiary’s salary is less than the Department of Labor’s prevailing wage requirement for that particular position, and the employer refuses to raise the salary to meet the prevailing wage, you may try to convince your employer to change part of or the whole fringe benefits to cash and add it to your salary, to satisfy the prevailing wage requirement. Keep in mind that there are two concurrent conditions that need to be met in order to directly include the fringe benefits in the salary: i. the value of the fringe benefits is fixed and is guaranteed to be paid by the employer (i.e., they are not conditional or contingent on some event such as the employer’s annual profits); ii. The fringe benefits constitute a taxable component (i.e., recorded and reported as “earnings” with appropriate taxes and FICA contributions withheld and paid).
b. The possibility of lessening working hours or change the position from full-time to part-time
H-1B petitioned positions could be full-time or part-time. It is considered that working 35 hours or more per week count as a full-time position. Working below 35 hours per week would be counted as part-time. Under the circumstance where the salary agreed by the employer is less than the Department of Labor’s prevailing wage requirement, and the employer refuses to raise the salary to meet the requirement, you may convince your employer to change the amount of your working hours. Keeping the original salary the same, but lowering the actual working hours is a way to satisfy the Department of Labor’s prevailing wage requirement. Last year, our firm successfully represented an example of such H-1B petition. The beneficiary’s promised salary is less than what the prevailing wage requires and the employer doesn’t want to increase the beneficiary’s salary. So we recommended the employer to lower the beneficiary’s working time from 40 hours to 38 hours per week to satisfy the prevailing wage requirement. Note that once the employer changes the working time in the petition process, then this working schedule would have to be followed strictly to avoid any law or regulation violations. (To be continued)
We have discussed which employer is H-1B cap-exempt in an article earlier. If you are unsure if your H-1B application is subject to H-1B caps or cap-exempt, please take a look at the article from the link http://workingus.com/v2/gnu/bbs/board.php?bo_table=fyzlaw&wr_id=17. If you have any questions, please feel free to contact attorney Tao Zhang at: email: @fyzlaw.com">tzhang@fyzlaw.com; Tel: (630-577-9060).
Attorney Tao Zhang is a partner at the FYZ Law Group LLP (www.fyzlaw.com). She has a lot of experience dealing with employment immigration and non-immigration visas. She has also successfully helped many people receive their H-1B approval. If you are considering applying for H-1B or a permanent resident status, please contact Attorney Tao Zhang at email (tzhang@fyzlaw.com); Tel: (630) 577-9060. She will evaluate your case for free.
FYZ Law Group LLP is a firm that provides a full range of immigration legal services to educational/research institutions, the private sector and individuals. Our lawyers have many years of experience in U.S. immigration legal services. We specialized in scientific/technological occupational employment-based immigration and non-immigrant visa applications such as: EB-1A, EB-1B and EB-1C, NIW, PERM, H-1B, L-1 and O-1. We have offices in the San Francisco Bay area, Chicago, and New York. We are one of the few U.S. employment-based immigration law firms across the U.S.
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