Cap Exempt H-1B Visa for Professors and Researchers

The H-1B category is often the only nonimmigrant visa category available for a U.S. employer to use to employ a Foreign National (FN). The employer must be seeking to fill a “specialty occupation” with a qualified FN. A specialty occupation is one which, by prevailing practice in the U.S., generally requires the possession of a baccalaureate degree or higher or its equivalent, as a minimum, entry-level credential. A qualified foreign national is one who possesses the minimum credentials necessary to practice the specialty occupation, i.e., the appropriate academic degree or the equivalent of a degree. Where U.S. state licensure is a requirement to practice the occupation without restriction, the U.S. Citizenship & Immigration Services (“USCIS”) will require the FN to possess the license before H-1B status will be approved.

The H-1B petition may be approved for a maximum initial period of three (3) years and may be extended for an additional three (3) years. A FN’s total period of continuous stay in the U.S. may only exceed six (6) years under certain special circumstances. Petition approval authorizes the FN’s employment in the position and location stated on the petition. There is a statutory cap that limits approval of new H-1B petitions in a fiscal year and the cap is currently set at 65,000. FNs who are employed, or who have received an offer of employment, by institutions of higher education or a related or affiliated nonprofit entity, as well as those employed, or who will be employed, by a nonprofit research organization or a governmental research organization are exempt from the cap. There is a $325 fee to file an H-1B petition with the U.S. CIS. There is also a Fraud Prevention and Detection Fee of $500 to be paid by cap-exempt petitioners seeking a beneficiary’s initial H-1B nonimmigrant visa classification or by petitioners seeking to change a beneficiary’s authorized employer.

An employer must complete and file a Labor Condition Application (“LCA”) with the U.S. Department of Labor (“DOL”) prior to the filing of the H-1B petition. The employer attests on the LCA that it will pay the alien a wage equal to the higher of either

(i) the “prevailing” wage for the specialty occupation in the local labor market or

(ii) the “actual” wage paid by the employer to other workers with similar responsibilities and qualifications in the occupation. (The employer must retain documentation supporting determination of both the prevailing wage and the actual wage.)

The employer also attests that the H-1B’s employment will not adversely affect the working conditions of U.S. workers similarly employed, that there is no strike, lockout or other work stoppages in the occupation in which the H-1B worker will be employed and that notice of the filing of the application has been provided to the company’s employees and the foreign national.

Additional requirements relating to recruitment and displacement of U.S. workers are required from employers whose workforce is composed of a significant percentage of foreign nationals (“dependent employers”). The DOL may investigate to determine whether all LCA requirements have been met and penalties for a willful failure to comply can be severe.