Meeting Staffing Needs with the "Guest Worker Visa"

April 20, 2000

We have all read about the 18 year-old programmers earning six-figures. The tight labor market for high-tech talent has been one of the most publicized human resources phenomena in recent memory, which some experts predict will continue until at least 2015. Until then, firms will have to struggle to meet their staffing needs.

One solution to which many have turned is the H-1B visa. This is a temporary visa category that allows employers to import high-tech talent from abroad to work for up to six years in "specialty occupations" requiring a bachelor's degree or higher.

Popular due to its relatively easy procedure, the category does, however, have certain requirements.

First, the position must be for a "specialty occupation" -- a professional position requiring at least a bachelor's degree. Generally, high-tech positions easily qualify, as well as, for example, architects, lawyers, physicians, professors, and some managerial positions.

Second, the foreign professional must be a "specialty occupation worker" -- he or she must actually have the appropriate bachelor's degree (or equivalent training and experience) plus any license required for the position.

Third, the annual H-1B visa cap must not have yet been reached. This cap or limit, which is currently set at only 115,000 visas per year, can present the biggest hurdle to employers wishing to hire otherwise-qualified foreign professionals. In recent years, the cap's effect has been to create a window of only seven to nine months (starting October 1) during which petitions could be filed. (This has been an extremely controversial issue in Congress, and proposed legislation to increase the cap should go to the Senate floor in early April.)

The employer begins the process by determining what is the position's "prevailing wage" -- the industry-standard wage for that position in the employer's geographic area. This information may be obtained from a private wage survey or a state Employment Security Agency (for example, Maryland's Department of Labor, Licensing, and Regulation).

The next step is to file a "Labor Condition Application" (DOL Form ETA 9035) with the U.S. Department of Labor. With this form, the employer attests that (1) the foreign professional will be paid at least 95% of the higher of the prevailing wage and the actual wage (the wage actually paid by that employer for others in that position); (2) the employer has notified its other employees of the intention to employ the H‑1B professional; (3) there is no strike or lockout at the place of employment; (4) the H‑1B professional will not adversely affect the working conditions of U.S. employees; and (5) the employer will keep on file certain documents related to the Labor Condition Application, and make them available for inspection by government officials.

Employers that are considered "H-1B Dependent" are required to make additional attestations to the effect that they have made good faith efforts to recruit U.S. workers, and that hiring the foreign professional will not displace U.S. workers. (H-1B Dependent employers are those whose staff includes a certain percentage of H-1B workers, the percentage depending upon total staff size.)

Failure to comply with these attestations can lead to hefty penalties.

Once received, the Department of Labor reviews the Labor Condition Application for completeness or technical errors, then returns a certified copy to the employer. The employer then submits it, along with a petition (INS Form I-129 with H Supplement) to the Immigration and Naturalization Service. By this petition, the employer must prove that (1) the employer has a need for a "specialty occupation worker," (2) the position offered is a "speciality occupation," and (3) the foreign professional is qualified for the position. Although making this proof is often relatively easy, the INS may request more evidence, or deny the petition if the position or foreign professional is not considered eligible. INS denials may be appealed.

For most employers, the visa fee totals $610 (comprising two separate fees of $110 and $500). By law, the employer cannot require the H-1B professional to pay or reimburse the $500 portion of that amount.

The foreign professional may begin work upon INS approval. However, he or she may not work for a different employer, or even necessarily switch positions at the same employer. If the terms of employment change, the professional may be required to obtain the approval of a new Labor Condition Application and amended petition, or even approval of a completely new petition, depending on the nature of the change.

The H-1B visa has proven to be an effective staffing tool in today's tight labor market. If Congress decides wisely, this tool will be improved, and will remain in employers' staffing toolbox for a long time to come. (I urge you to contact your legislators to voice your opinion).

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