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H-1B Specialty Workers

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H-1B Specialty Workers

H-1B Specialty Workers

The job must meet one of the following criteria to qualify as a specialty occupation:

  • Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position
  • The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree
  • The employer normally requires a degree or its equivalent for the position
  • The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.


For you to qualify to accept a job offer in a specialty occupation you must meet one of the following criteria:

  • Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university
  • Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation
  • Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment
  • Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.


Period of Stay
As an H-1B nonimmigrant, you may be admitted for a period of up to three years. Your time period may be extended, but generally cannot go beyond a total of six years, though some exceptions do apply under sections 104(c) and 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21).

Your employer will be liable for the reasonable costs of your return transportation if your employer terminates you before the end of your period of authorized stay.  Your employer is not responsible for the costs of your return transportation if you voluntarily resign your position. You must contact the Service Center that approved your petition in writing if you believe that your employer has not complied with this requirement.


H-1B Cap
The H-1B visa has an annual numerical limit "cap" of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap.  Additionally, H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities or a nonprofit research organization, or a government research organization are not subject to this numerical cap. 

For further information about the numerical cap, see  Fiscal Year (FY) 2012 H-1B Cap Season Web page.


Family of H-1B Visa Holders
Your spouse and unmarried children under 21 years of age may seek admission in the H-4 nonimmigrant classification. Family members in the H-4 nonimmigrant classification may not engage in employment in the United States.

 

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Process & Procedures Topics 

Labor Condition Application - LCA

The prospective employer must file an approved Form ETA-9035, Labor Condition Application (LCA), with the Form I-129, Petition for a Nonimmigrant Worker.  See the Department of Labor’s (DOL) Office of Foreign Labor Certification and USCIS forms.

Application Process

Step 1: Only required for specialty occupation petitions:  Employer Submits LCA to DOL for certification. 
The employer must apply for and receive DOL certification of an LCA.  For further information regarding LCA requirements and DOL's inert process, see the "Foreign Labor Certification, Department of Labor" link to the right.
Step 2:  Employer Submits Completed Form I-129 to USCIS.  
The employer should file Form I-129, Petition for a Nonimmigrant Worker, with the correct USCIS Service Center.  Please see our I-129 Direct Filing Chart page. The DOL-certified LCA must be submitted with the Form I-129 (only for specialty occupation and fashion models).  See the instructions to the Form I-129 for additional filing requirements.
Step 3: Prospective Workers Outside the United States Apply for Visa and/or Admission. 
Once the Form I-129 petition has been approved, the prospective H-1B worker who is outside the United States may apply with the U.S. Department of State (DOS) at a U.S. embassy or consulate abroad for an H-1B visa (if a visa is required).   Regardless of whether a visa is required, the prospective H-1B worker must then apply to U.S. Customs and Border Protection (CBP) for admission to the United States in H-1B classification.  

 

Labor Condition Application (LCA)
Prospective specialty occupation employers must obtain a certification of an LCA from the DOL. This application includes certain attestations, a violation of which can result in fines, bars on sponsoring nonimmigrant or immigrant petitions, and other sanctions to the employer. The application requires the employer to attest that it will comply with the following labor requirements:

 

  • The employer will pay the beneficiary a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for your position in the geographic area in which you will be working.  
  • The employer will provide working conditions that will not adversely affect other similarly employed workers. At the time of the labor condition application there is no strike or lockout at the employer place of business. Notice of the filing of the labor condition application with the DOL has been given to the union bargaining representative or has been posted at the place of business.



How USCIS Determines if an H-1B Petition is Subject to the Cap

USCIS uses the information provided in Part C of the H-1B Data Collection and Filing Fee Exemption Supplement (Form I-129, pages 17 through 19, with a revision date of November 23, 2010, or later) to determine whether a petition was subject to the 65,000 H-1B numerical limitation (the “cap”).  Some petitions were exempt from the cap under the advanced degree exemption provided to the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master’s degree or higher. Unless otherwise exempt from the cap, petitions filed on behalf of beneficiaries who have obtained a U.S. master’s degree or higher were counted against the regular cap once USCIS received sufficient petitions to reach the advanced degree exemption.

Cap Amounts

The current annual cap on the H-1B category is 65,000. Not all H-1B nonimmigrants are subject to this annual cap. Please note that up to 6,800 visas are set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year.

Please comply with the following to ensure that your petition is properly filed:

Complete all sections of the Form I-129 petition, including the H Classification Supplement to Form I-129 (pages 11 and 12 of Form I-129) and the H-1B Data Collection and Filing Fee Exemption Supplement (pages 17 through 19). USCIS accept Form I-129 with the latest revision date on their website.
    Original signatures, preferably in blue ink, are required on each form.
    Include a signed check or money order with the correct fee amount.
    Ensure that all required documentation and evidence is submitted with the petition at the time of filing to ensure timely    processing.

Note: It is your responsibility to ensure that Form I-129 is completed accurately.  Failure to complete Form I-129 with the correct information and provide the required fees or documentation may result in the rejection or denial of the H-1B petition.

Additionally, be sure to file the petition at the correct USCIS Service Center.   See the current information on the USCIS website for “Where to Mail the H-1B Petition.”

Additional Documents Required With Your Petition

Labor Condition Application (LCA)

You must submit a certified Department of Labor (DOL) LCA (Form ETA 9035) at the time of filing your petition.  A copy of the LCA is acceptable.

Note: USCIS encourages petitioners to keep DOL LCA processing times in mind when preparing the H-1B petition and plan accordingly.  If the LCA certified by DOL is for multiple positions, you must provide the name and USCIS case receipt number of any alien who has previously utilized the LCA.

Petitioners should ensure that they have signed the LCA prior to the LCA being submitted with the petition to USCIS.

Please see Department of Labor’s Office of Foreign Labor Certification website for further information on the LCA process.

Evidence of Beneficiary’s Educational Background

You must submit evidence of the beneficiary’s educational degree at the time of filing.  If all of the requirements for the degree have been met, but the degree has not yet been awarded, the following alternate evidence may be submitted:
    A copy of the beneficiary’s final transcript; or
    A letter from the Registrar confirming that all of the degree requirements have been met (if the educational institution does not have a Registrar, such letter must be signed by the person in charge of the educational records where the degree will be awarded).

If you are indicating that the beneficiary is qualified based on a combination of education and experience, please provide substantiating evidence at time of filing.

A Duplicate Copy of the H-1B Petition

You must submit a duplicate copy of your H-1B petition at the time of filing if the beneficiary will be seeking nonimmigrant visa issuance abroad.  USCIS will not make a second copy if one is not provided.

You may also choose to submit a duplicate copy of the petition, even if the beneficiary is requesting a change of status to H-1B or an extension of stay, in case the beneficiary later decides to seek visa issuance abroad or the H-1B petition is approved but the beneficiary’s concurrent change of status or extension of stay request is denied.

You may review the Department of State website to make sure that the consulate indicated on Form I-129 is able to process the beneficiary’s nonimmigrant visa application and for any other consulate-specific special instructions.

Multiple or Duplicative Filings

On March 19, 2008, USCIS announced an interim final rule on H-1B visas to prohibit employers from filing multiple or duplicative H-1B visas for the same employee. To ensure fair and orderly distribution of available H-1B visas, USCIS will deny or revoke multiple or duplicative petitions filed by an employer for the same H-1B worker and will not refund the filing fees submitted with multiple or duplicative petitions.

Where to Mail Your H-1B Petition

You must file your petition at the correct Service Center depending on the jurisdiction of the H-1B beneficiary’s work location(s) as specified in the petition.  You should review the USCIS established specific mailing addresses for purposes of identification and processing of H-1B cases.

To determine which jurisdiction you are in, see USCIS Website for Direct Filing Addresses for Form I-129, Petition for Nonimmigrant Worker.

Note: A separate mailing address has been established for certain types of educational or nonprofit organizations which files H-1B petitions on behalf of beneficiaries that are exempt from the H-1B numerical limitations.

Please read the filing instructions very carefully by USCIS.  If you file your petition incorrectly, USCIS will reject the petition.   Rejected petitions will not retain a filing date.

Required Fees - Please see the USCIS website for most current filing fees.

There are different fees depending on the type of H-1B petition you are submitting.  Please refer to the most current H-1B Data Collection and Filing Fee Exemption Supplement (pages 17-19 of Form I-129) for detailed instructions on fees.

The following fees may be required with an H-1B petition:

Base filing fee:

    $325

American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee:

Please see H-1B Data Collection and Filing Fee Exemption Supplement, Part B:

    $750 for employers with 1 to 25 full-time equivalent employees, unless exempt
    $1,500 for employers with 26 or more full-time equivalent employees, unless exempt

Fraud Prevention and Detection fee:

    $500 to be submitted with a request for initial H-1B status or with a request for a beneficiary already in H-1B status to change employers (does not apply to Chile/Singapore H-1B1 petitions)

Public Law 111-230:

    $2,000 to be submitted by a petitioner which employs 50 or more employees in the United States where more than 50 percent of its employees in the United States are in H-1B or L-1 nonimmigrant status.
    must be submitted with a request for initial H-1B status or a request for a beneficiary already in H-1B status to change employers

Premium Processing fee:

    $1,225 for employers seeking Premium Processing Service

Checks

Make checks payable to the Department of Homeland Security or U.S. Citizenship and Immigration Services, dated within the last 6-months, and include the proper guarantee amount and signature.

Money Orders

Money orders must be properly endorsed.

Non-payable Checks or Other Financial Instruments

USCIS will reject all applications or petitions submitted with the incorrect filing fee.  Rejected petitions and petitions in which the check or other financial instrument used to pay the filing fee is returned as non-payable will not retain a filing date. Please see 8 CFR 103.2(a)(7)(i).

While petitioners are generally provided the opportunity to correct a fee deficiency, pursuant to the regulations, the filing date is not established until and unless the fee deficiency has been corrected.

Premium Processing Service

H-1B petitions are eligible for the Premium Processing Service.  Petitioners may choose to file a Request for Premium Processing Service (Form I-907) to have their petition processed within 15 calendar days. To request premium processing submit:

    the Form I-907 and
    the filing fee of $1,225 this fee is in addition to the required base filing and other applicable fees.

You can file the Form I-907 and corresponding fee:

    at the same time as Form I-129 or
    at any time after you file Form I-129 while it is still pending.

If filed after the Form I-129, be sure to include the receipt number (e.g., EAC 12 123 51234) of the Form I-129 in the pertinent section of Form I-907.

Note: USCIS will only accept the most recent edition of Form I-907.  


Organizing your H-1B package

A separate check for each applicable filing fee (Form I-129, Premium Processing, Fraud Fee, ACWIA fee, and Public Law 111-230) is preferred.  Applicable fees should be stapled to the bottom right corner of the top document.

Preferred order of documents at time of submission:

    Form I-907 - if filing for Premium Processing Service
    Form G-28 - if represented by an attorney or accredited representative
    Form I-129, Petition for a Nonimmigrant Worker
    Addendums/Attachments
    H Classification Supplement to Form I-129 and/or Free Trade Supplement (for H-1B1 Chile-Singapore petitions)
    H-1B Data Collection and Filing Fee Exemption Supplement
    All supporting documentation to establish eligibility
    Provide a Table of Contents for supporting documentation

·         Tab items as listed in Table of Contents

·         Arrival-Departure Record (Form I-94) if the beneficiary is in the U.S.

·         SEVIS Form I-20 if the beneficiary is a current or former F-1 student or F-2 dependent

·         SEVIS Form DS-2019 if the beneficiary is a current or former J-1 or J-2

·         Form I-566 if the beneficiary is a current A or G nonimmigrant

·         DOL certified LCA, Form ETA 9035

·         Employer/attorney/representative letter(s); and

·         Other supporting documentation.

    Duplicate copy of the petition, if necessary.  Clearly identify the duplicate copy of the petition as “COPY”, so that it is not mistaken for a duplicate filing.

How to mail multiple petitions together

If multiple petitions will be included in the same courier service or Post Office package, please place individual petitions into separate envelopes within the package.

Filing Tips:

Form G-28, Notice of Entry of Appearance as Attorney or Representative

If the petitioner will be represented by an attorney or other accredited representative, a properly executed Form G-28 should be submitted.  Each Form G-28 should include the following:

    All sections completed;
    The printed name and signature of the representative;
    The original signature of the petitioner.

Form I-129, Petition for a Nonimmigrant Worker

    Complete all sections of the form accurately.
    Ensure that the petition is properly signed.  
    Petitioners should enter their own address in Part 1, question 3 of the Form I-129 to ensure that the original I-797 receipt and approval notices are sent directly to the petitioner. Please note: Using an address other than the petitioner’s address as the mailing address may cause processing delays related to the Validation Instrument for Business Enterprises (VIBE), as VIBE automatically uses the address provided on the petition to validate the petitioner’s current location. If petitioners use an attorney’s address as the mailing address on the I-129 petition, a cover letter should be included with the filing that clearly indicates the current address of the petitioner. This information will be used to assist the Immigration Services Officer (ISO) in completing a manual check in VIBE using the petitioner’s address. In addition, if an attorney’s address is used as the petitioner’s mailing address on the form, the petitioner will not receive any I-797 notices.
    Ensure the beneficiary’s name is spelled properly and that his/her date of birth is displayed in the proper format (mm/dd/yyyy).  Also, country of birth/citizenship and the I-94 number (if applicable) should be reviewed for accuracy.
    If the beneficiary will ultimately be seeking issuance of a visa at a consular office abroad, a copy of the petition and supporting documentation should be included with the filing.  For cases where the beneficiary will be seeking a change of status or extension of stay in the United States, a copy is not required; however, you may choose to submit a duplicate copy in the event the beneficiary seeks issuance of a visa at a consular office abroad subsequent to the approval of the I-129 petition.
    If the beneficiary is seeking an extension or change of status, the petition should include evidence (e.g. Form I-94 or Form I-797 approval notice) to establish that the beneficiary will have maintained a valid nonimmigrant status through the employment start date being requested.
    Include a copy of the beneficiary’s valid passport.

H Classification Supplement to Form I-129 (pages 11 and 12 of Form I-129)

    Please be sure to complete all sections of the form accurately.
    In listing previous periods of stay in H/L classification (question 3), please also include the actual nonimmigrant classification held (e.g. H-1B or L-1).
    Petitioner must sign the form, preferably in black ink.

H-1B Data Collection and Filing Fee Supplement form pages 17 through 19 of Form I-129

    Please be sure to complete all sections of the form accurately.
    Please enclose page 17 through 19 of the Form I-129 with the most current revision date.
    If the answer to the first question in Part D on page 19 is “No,” that the beneficiary will not be assigned to work at an off-site location, then responses to the remaining two questions in Part D are not required.

Form I-907, Request for Premium Processing

    Please be sure to complete all sections of the form accurately with original signatures.  Note: USCIS will ONLY accept the most current edition of Form I-907.
    The representative may sign in both Parts 3 and 4 of the Form I-907 if there is a valid Form G-28 with the filing.  Otherwise, the petitioner’s signature is required.  Preferably, the signature(s) should be in black ink.
    Please include a copy of the Form I-129 receipt notice along with the Form I-907 when Form I-907 is filed after the filing of Form I-129.

 

 

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 Questions and Answers

Frequently Asked Questions about Part 6 of Form I-129, Petition for a Nonimmigrant Worker

Introduction

On Nov. 23, 2010, U.S. Citizenship and Immigration Services (USCIS) revised Form I-129, Petition for a Nonimmigrant Worker. The revised Form I-129 and subsequent editions contain Part 6, Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States. Part 6 must be completed for certain Form I-129 petitions postmarked on or after Feb. 20, 2011.

Q.  What is Part 6 of Form I-129?
A.  Part 6 of Form I-129 is an attestation regarding the release of controlled technology or technical data to foreign persons in the United States. Part 6 requires petitioners to affirm that they have reviewed the export control regulations. It further requests petitioners to indicate whether a license is required from either the Department of Commerce (DOC) or the Department of State (DOS) to release technology or technical data to the beneficiary of the petition. If a license is required, the petitioner must certify that the beneficiary will not access such technology or data until the license has been obtained.

Q.  What is the purpose of Part 6? 
A.  In 2002, the U.S. Government Accountability Office (GAO) reported that vulnerabilities in the deemed export licensing system could allow technology transfers to countries of concern (GAO-02-972). The GAO reported that DOC was not sufficiently coordinating its efforts with those of INS (now USCIS) to identify and follow up on foreign nationals who change their immigration status to obtain jobs that could involve dual-use technology controlled under the Export Administration Act.

In addition, an April 2004 report (OIG-04-23) issued by the Inspectors General of several departments -- including DOS, DOC and Homeland Security found that USCIS did not include the protection of controlled technology as part of its process of adjudicating change-of-status applications submitted by foreign nationals in the United States.

Part 6 of Form I-129 was a solution for addressing the issues raised in these two reports.

Q.  What are the export control requirements?
A.    The Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) require U.S. persons, including companies, to seek and receive authorization from the U.S. government before releasing controlled technology or technical data to foreign persons in the United States (15 CFR Parts 770-774 and 22 CFR Parts 120-130). U.S. companies must seek and receive a license from DOC and/or DOS before releasing controlled technology or technical data to nonimmigrant workers.

Q.  Are these export control regulations new?
A. No. These export control regulations are not new. However, Form I-129 was revised on Nov. 23, 2010, to include Part 6, Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States. Part 6 must be completed for certain Form I-129 petitions postmarked on or after Feb. 20, 2011.

Q.  Is Part 6 required for all Form I-129 petitions?
A.  No. Part 6 must be completed only for petitions seeking H-1B, H-1B1, L-1, or O-1A nonimmigrant status for the beneficiary.

Q.  Will a petition be rejected if Part 6 is required but has not been completed after Feb. 20, 2011?
A.  No. USCIS will not reject Form I-129 if Part 6 is not completed. USCIS will issue a Request for Evidence (RFE) to provide the petitioner with the opportunity to complete Part 6.

Q.  What will happen to a petition if Part 6 is required but the petitioner declines to respond to the RFE?
A.  The petition will be denied should the petitioner decline to respond to Part 6 in response to an RFE.

Q.  Will USCIS require a copy of the export control license if one is necessary?
A.  No. At this time, USCIS does not require a copy of the export control license as part of the nonimmigrant visa petition process. 

Q.  Will a petition be denied if an export control license is required but has not been obtained prior to filing the petition?
A.  No. USCIS will not deny the petition on the basis that a license is required but has not been obtained prior to the filing of the petition. However, the certification on Form I-129 includes a statement that the petitioner will prevent access to the controlled technology or technical data until and unless the petitioner has received the required license or other authorization to release it to the beneficiary. Failure to do so, where required under applicable law, may constitute a basis for revocation of the Form I-129 petition.    

Q.  Where can I obtain additional information about the export control regulations?
A. DOC’s Bureau of Industry and Security (BIS) administers the Commerce Control List (CCL) and is responsible for issuing licenses under the EAR. Information about EAR and how to apply for a license from BIS can be found at www.bis.doc.gov. Specific information about EAR’s requirements pertaining to the release of controlled technology can be found at www.bis.doc.gov/deemedexports

DOS’s Directorate of Defense Trade Controls (DDTC) administers the U.S. Munitions List (USML) and is responsible for issuing licenses under the ITAR. Information about the ITAR and how to apply for a license from DDTC can be found at www.pmddtc.state.gov. Specific information about the ITAR’s requirements pertaining to the release of controlled technical data can be found at www.pmddtc.state.gov/faqs/license_foreignpersons.html.


Questions & Answers: USCIS Issues Guidance Memorandum on Establishing the "Employee-Employer Relationship" in H-1B Petitions

Published Jan. 13, 2010; revised Aug. 2, 2011 and March 12, 2012

Introduction

On Jan. 8, 2010, U.S. Citizenship and Immigration Services (USCIS) issued updated guidance to adjudication officers to clarify what constitutes a valid employer-employee relationship to qualify for the H-1B ‘specialty occupation’ classification. The memorandum clarifies such relationships, particularly as they pertain to independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites. The memorandum is titled, “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements:  Additions to Officer’s Field Manual (AFM) Chapter 31.3(g)(15)(AFM Update AD 10-24).” In addition to clarifying the requirements for a valid employer-employee relationship, the memorandum also discusses the types of evidence petitioners may provide to establish that an employer-employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period.

Q1:  Does this memorandum change any of the requirements to establish eligibility for an H-1B petition?

A1:  No. This memorandum does not change any of the requirements for an H-1B petition. The H-1B regulations currently require that a United States employer establish that it has an employer-employee relationship with respect to the beneficiary, as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee. In addition to demonstrating that a valid employer-employee relationship will exist between the petitioner and the beneficiary, the petitioner must continue to comply with all of the requirements for an H-1B petition including:

    establishing that the beneficiary is coming to the United States temporarily to work in a specialty occupation;
    demonstrating that the beneficiary is qualified to perform services in the specialty occupation; and
    filing of a Labor Condition Application (LCA) specific to each location where the beneficiary will perform services.

Q2:  What factors does USCIS consider when evaluating the employer-employee relationship?

A2:  As stated in the memorandum, USCIS will evaluate whether the petitioner has the “right to control” the beneficiary’s employment, such as when, where and how the beneficiary performs the job. Please see the memorandum for a list of factors that USCIS will review when determining whether the petitioner has the right to control the beneficiary. Please note that no one factor is decisive; adjudicators will review the totality of the circumstances when making a determination as to whether the employer-employee relationship exists.

Q3:  What types of evidence can I provide to demonstrate that I have a valid employer-employee relationship with the beneficiary?

A3:  You may demonstrate that you have a valid employer-employee relationship with the beneficiary by submitting the types of evidence outlined in the memorandum or similar probative types of evidence.

Q4:  What if I am unable to submit the evidence listed in the memorandum?

A4:  The documents listed in the memorandum are only examples of evidence that may establish the petitioner’s right to control the beneficiary’s employment. Unless a document is required by the regulations, i.e. an itinerary, you may provide similarly probative documents. You may submit a combination of any documents that sufficiently establish that the required relationship between you and the beneficiary exists. You should explain how the documents you are providing establish the relationship. Adjudicators will review and weigh all the evidence submitted to determine whether a qualifying employer-employee relationship has been established.

Q5: Am I required to submit a letter or other documentation from the end-client that identifies the beneficiary to demonstrate that a valid employer-employee relationship will exist between the petitioner and beneficiary if the beneficiary will perform services at an end-client/third-party location?

A5: No. While documents from the end-client may help USCIS determine whether a valid employer-employee relationship will exist, this type of documentation is not required. You may submit a combination of any documents to establish, by a preponderance of the evidence, that the required relationship will exist. The types of evidence listed in the memorandum are not exhaustive. Adjudicators will review and weigh all the evidence submitted to determine whether you have met your burden in establishing that a qualifying employer-employee relationship will exist.

Q6:  What if I receive or have received a Request for Evidence (RFE) requesting that I submit a particular type of evidence and I do not have the exact type of document listed in the RFE?

A6:  If the type of evidence requested in the RFE is not a document that is required by regulations, you may submit other similar probative evidence that addresses the issue(s) raised in the RFE. You should explain how the documents you are providing address the deficiency(ies) raised in the RFE. Adjudicators will review and weigh all evidence based on the totality of the circumstances. Please note that you cannot submit similar evidence in place of documents required by regulation.

Q7:  Will my petition be denied if I cannot establish that the qualifying employer-employee relationship will exist?

A7:  If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you may be given an opportunity to correct the deficiency in response to an RFE. Your petition will be denied if you do not provide sufficiently probative evidence that the qualifying employer-employee relationship will exist for any time period.

Q8:  What if I can only establish that the qualifying employer-employee relationship will exist for a portion of the requested validity period?

A8:  If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you may be given an opportunity to correct the deficiency in response to an RFE. Your petition may still be approved if you provide evidence that a qualifying employer-employee relationship will exist for a portion of the requested validity period (as long as all other requirements are met). However, USCIS will limit a petition’s validity to the time period of qualifying employment established by the evidence.

Q9: What happens if I am filing a petition requesting a “Continuation of previously approved employment without change” or “Change in previously approved employment,” and an extension of stay for the beneficiary in H-1B classification, but I did not maintain a valid employer-employee relationship with the beneficiary during the validity period of the previous petition?

A9:  Your extension petition will be denied if USCIS determines that you did not maintain a valid employer-employee relationship with the beneficiary throughout the validity period of the previous petition. The only exception is if there is a compelling reason to approve the new petition (e.g. you are able to demonstrate that you did not meet all of the terms and conditions through no fault of your own). Such exceptions would be limited and made on a case-by-case basis.

Q10:  What if I am filing a petition requesting a “Change of Employer” and an extension of stay for the beneficiary’s H-1B classification? Would my petition be adjudicated under the section of the memorandum that deals with extension petitions?

A10:  No. The section of the memorandum that covers extension petitions applies solely to petitions filed by the same employer to extend H-1B status without a material change in the original terms of employment. All other petitions will be adjudicated in accordance with the section of the memorandum that covers initial petitions.

Q11: I am a petitioner who will be employing the beneficiary to perform services in more than one work location. Do I need to submit an itinerary in support of my petition?

A11:  Yes. You will need to submit a complete itinerary of services or engagements, as described in the memo, if you are employing the beneficiary to perform services in more than one work location (in order to comply with 8 CFR 214.2(h)(2)(i)(B)). Furthermore, you must comply with Department of Labor regulations requiring that you file an LCA specific to each work location for the beneficiary.

Q12: The memorandum provides an example of when a beneficiary, who is the sole owner of the petitioning company or organization, would not establish a valid employer-employee relationship. Are there any examples of when a beneficiary, who is the sole owner of the petitioning company or organization, may be able to establish a valid employer-employee relationship?

A12.   Yes. In footnotes 9 and 10 of the memorandum, USCIS indicates that while a corporation may be a separate legal entity from its stockholders or sole owner, it may be difficult for that corporation to establish the requisite employer-employee relationship for purposes of an H-1B petition. However, if the facts show that the petitioner has the right to control the beneficiary’s employment, then a valid employer-employee relationship may be established. For example, if the petitioner provides evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary’s employment, the petitioner may be able to establish an employer-employee relationship with the beneficiary.

Q13:  The memorandum provides an example of when a computer consulting company had not established a valid employer-employee relationship. Are there any situations in which a consulting company or a staffing company would be able to establish a valid employer-employee relationship?

A13:  Yes. A consulting company or staffing company may be able to establish that a valid employer-employee relationship will exist, including where the beneficiary will be working at a third-party worksite, if the petitioning consulting or staffing company can demonstrate by a preponderance of the evidence that it has the right to control the work of the beneficiary. Relevant factors include, but are not limited to, whether the petitioner will pay the beneficiary’s salary; whether the petitioner will determine the beneficiary’s location and relocation assignments (i.e. where the beneficiary is to report to work); and whether the petitioner will perform supervisory duties such as conducting performance reviews, training, and counseling for the beneficiary. The memorandum provides a non-exhaustive list of types of evidence that could demonstrate an employer-employee relationship.

Q14: What happens if I do not submit evidence of the employer-employee relationship with my initial petition?

A14:  If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you will be given an opportunity to correct the deficiency in response to an RFE. However, failure to provide this information with the initial submission will delay processing of your petition.

 

Questions about Same or Similar Occupational Classifications Under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21)

Section 106(c) of AC21, commonly known as the job flexibility provision, was enacted as Immigration and Nationality Act (INA) section 204(j).  This portion of the INA is provided below for convenience:

A petition under subsection (a)(1)(D) [redesignated as (a)(1)(F)] for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed.

This section of law allows certain aliens to change or port the offer of employment on which their adjustment of status application is based from one job to another job as long as both jobs are in the same or similar occupational classification.  Within these questions and answers, the term “port” or “porting” means to change the offer of employment from one job to another job in a way that allows an applicant to remain eligible to adjust status without having to file a new I-140 immigrant petition.  For an alien to change the offer of employment, his or her adjustment of status application, Form I-485, must have been pending with USCIS for 180 days or more.
Questions and Answers

Q1. What is an “occupational classification”?
A1. The Department of Labor (DOL) uses the Standard Occupational Classification (SOC) system to group and classify jobs and occupations. The purpose of the SOC system is to classify workers into occupational categories to organize occupational data.  The SOC system covers all occupations where work is performed for pay or for profit. Occupations are categorized based on the type of work performed. Additionally, certain occupations are also classified based on the skills, education and training required to perform the job.

The SOC system is organized using codes, which generally consist of six numerical digits. For example, the SOC code for a stonemason is 47-2022.

    [47]-2022: The first two digits, “47” represent the major group, which includes all construction and extraction occupations.
    47-[2]022: The third digit, “2” represents the minor group, which includes all construction trade workers.
    47-2[02]2: The forth and fifth digits, “02” represent the broad occupation, which includes brickmasons, blockmasons, and stonemasons.
    47-202[2]:  The sixth digit, “2” represents the detailed occupation, which only includes stonemasons.

47-0000  Construction and Extraction Occupations
      47-2000  Construction Trades Workers
                    47-2020  Brickmasons, Blockmasons, and Stonemasons
                                     47-2022  Stonemasons

No occupation will be assigned to more than one category at the lowest level of the classification (sixth digit).  A USCIS memo titled, Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-485 and H-1B Petitions Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) (December 27, 2005 AC21 Memo) instructed USCIS officers to consider the Dictionary of Occupational Titles (DOT) code as part of the same or similar occupational classification analysis. The DOT has been replaced by the Occupational Information Network (O*NET) under the sponsorship of DOL’s Employment and Training Administration (ETA). The O*NET system relies upon the SOC codes.

Q2. How does USCIS determine what qualifies as a same or similar occupational classification?
A2. USCIS generally makes a determination as to whether one job is in the “same or similar” occupational classification as another by referring to the DOL’s SOC system. USCIS officers also consider multiple factors to conclude if two jobs are considered to be in similar occupational classifications for porting purposes (see above question for definition of “porting”). USCIS officers may compare factors including, but not limited to:

    The job duties of both positions
    The SOC code from the Immigrant Petition for Alien Worker (Form I-140) and the appropriate SOC code for the new position
    The wages associated with each position

USCIS officers will view the totality of the circumstances to determine if the two jobs are the same or similar for porting purposes.

Q3. Does USCIS only use the first two or the first three numbers of the SOC code to determine if two occupational classifications are same or similar?
A3.  As noted above, USCIS does not use a simple numerical comparison of SOC codes to determine if two jobs are the same or similar. USCIS aims to determine in all cases whether a new position is in the same or similar occupational classification as the original job offer.  

When referring to the SOC system, USCIS will analyze the SOC codes of the two jobs it is comparing.  However, there is no hard and fast rule for matching any particular order of digits in two SOC codes.

In the example in Q.1, the “47” encompasses all construction and extraction occupations, which is a broad category and would not determine whether two jobs are similar. In this particular example, even matching additional digits of the SOC codes may not show whether or not two jobs are similar.   

For example, the SOC code for a stonemason is 47-2022.  The job description for a stonemason is:

Build stone structures, such as piers, walls, and abutments.  Lay walks, curbstones, or special types of masonry for vats, tanks, and floors.

The SOC code for a boilermaker is 47-2010, which contains the same first four numbers of the stonemason’s SOC code (47-20).  However, the job description for a boilermaker is significantly different from that of stonemason:

Construct, assemble, maintain, and repair stationary steam boilers and boiler house auxiliaries.  Align structures or plate sections to assemble boiler frame tanks or vats, following blueprints.  Work involves use of hand and power tools, plumb bobs, levels, wedges, dogs, or turnbuckles. Assist in testing assembled vessels.  Direct cleaning of boilers and boiler furnaces.  Inspect and repair boiler fittings, such as safety valves, regulators, automatic-control mechanisms, water columns, and auxiliary machines.

Q4. The December 27, 2005 AC21 Memo states that a discrepancy between the wages of two jobs may be used to decide if the two positions are the same or similar, but the memo also states that a difference in the wages of the two jobs cannot be used as the sole basis for denial in adjustment of status portability cases.  Can USCIS provide further explanation on how wages are used to determine whether two jobs are in the same or similar occupational classification?
A4. Section I, Question 3 from the December 27, 2005 AC21 Memo provides USCIS officers with the flexibility to consider a “substantial discrepancy” in the wages offered in two positions to assist them in deciding if the two jobs are in the same or a similar occupational classification. A “substantial discrepancy” in the wages of the two jobs may be a contributing factor in a denial when the evidence is considered in its totality. However, a USCIS officer should not deny a case solely because a second position pays more or less than the original.

Section 1, Question 5 from the December 27, 2005 AC21 Memo references a “difference” in the wages to inform both USCIS officers and the public that a difference in wages should not be used as the sole basis for a denial. This means there can be an allowance for normal raises that occur through the passage of time to account for inflation and other factors such as higher rates of pay in different metropolitan locations.

Q5. Can I accept a different position or receive a promotion from my employer and remain eligible to adjust my status to permanent residence?
A5. USCIS will evaluate these situations on a case-by-case basis. The job duties for each position, the SOC codes for each position, and any differences in the wages will be the determining factors as to whether you remain eligible.  Regardless of whether the new job is considered a demotion, a lateral move or a promotion within the company for which the beneficiary is employed, the job duties must be sufficiently similar.  USCIS officers will view the totality of the circumstances in light of the congressional intent, expressed in INA section 204(j), as enacted by 106(c) of AC21, to facilitate job mobility within the same or similar occupational classification for qualifying aliens with long-pending adjustment applications.

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