NURSES

Use of the H-1B Category to Petition for Foreign Nurses

Immigration and Naturalization Service (INS) may accept and adjudicate H-1B petitions filed on behalf of foreign nurses

All H-1B requirements are applicable to foreign nurses seeking H-1B status, including the requirements relating to the labor condition application (LCA) and licensure. INS adjudicators have been instructed to pay close attention to the statutory definition of a “specialty occupation” both with respect to the minimum educational requirements for the position, and for the alien beneficiary.

H-1B petitions filed on behalf of nurses will be approved for an initial period of three years. Extensions are possible until the maximum period of H-1B authorized admission has been reached, i.e. six years. Once the maximum period is reached, a new H-1B petition cannot be approved for the alien until he or she resides and is physically present outside of the United States for a minimum period of one year

General Information on H-1B Category

In order to qualify for H-1B status a person must belong to a Specialty Occupation. Specialty Occupation means an occupation which requires theoretical and practical application of a body of highly specialized knowledge to perform the occupation, and which requires the attainment of a bachelor’s or higher degree as a minimum requirement to perform job duties.

The H-IB nonimmigrant visa category is a temporary visa classification that is initially valid for three years. The first step in obtaining this classification is to file a Labor Condition Application (LCA) with the U.S. Department of Labor.

The U.S. Department of Labor requires the employer to submit two originals of the LCA. In signing this form the employer affirms that the H-1B worker shall be paid the “required wage rate” for the occupation. The required wage rate is the higher of the prevailing wage for the occupation in the area of intended employment or the actual wage paid to similar employees of the employer in the same occupation at the work site.

The additional attestations made by the employer as part of the LCA are as follows:

1. The employment of the H1-B worker will not adversely affect the working conditions of other similarly employed workers;

2. There is no strike, lockout or work stoppage in the course of a labor dispute affecting the employer’s employees in the occupation at the work site, and

3. A notice of the LCA filing has been provided to other workers at the location of employment.

The requirement of notice may be accomplished by posting notice of the LCA or a written summary with specific information about the LCA in two conspicuous locations at the work site for ten consecutive business days. In the event that the occupation is unionized, notice should be accomplished instead by giving a copy of the LCA or a written summary to the appropriate bargaining representative.

As part of the LCA process, employers are required to document that they have complied with all the attestations listed on the LCA. Although none of these documents need to be submitted to the Department of Labor, the employer is required to maintain these documents in a file available for public inspection. LCA materials must be kept separately from other employment records. Separation of LCA and employment records will avoid a confidentiality breach and an unnecessary disclosure of compensation data.

The documents for public inspection must be made available within one day after filing the LCA with the Department of Labor. The documents can be maintained either at the employer’s principal place of business in the U.S. or at the location where the H-1B worker will be employed. Any person or group whether or not aggrieved by the employer’s conduct, may request to see the H-1B public inspection file. The file must be made available to the requester within one business day of the request. The employer must maintain these records for at least one year after the end of the period of employment indicated on the LCA or if a timely complaint is filed, until the time the complaint is resolved. The documentation that must be maintained for public inspection includes:

1. A copy of the LCA (Form ETA 9035) signed by the employer’s representative;

2. A statement of the current rate of pay for each H-1B admitted under the LCA;

3. A copy of the prevailing wage determination for each area of employment;

4. A memorandum explaining how the employer calculated the actual wage for the job, without identification of the H-1B worker or other workers similarly employed to the H-1B worker for purposes of determining the actual wage;

5. Evidence of notification to the bargaining representative or posting of the LCA filing including the dates and locations of posting;

6. Evidence that a copy of the LCA was given to the H-1B worker on or before the first day of employment

1. Payroll records showing the wage rate of all the employer’s employees in the same job at the place of employment;

2. Data used to establish the actual wage rate for the H-1B worker. This data should document arithmetically how the employer’s wage system, described in the memorandum in the public inspection file, was applied to calculate the H-1B worker’s rate of pay.

3. Data underlying the prevailing wage determination, if applicable.

4. Documentation on working conditions. The employer may be required to produce evidence that the H-1B worker is receiving working conditions equivalent to U.S. workers if Department of Labor undertakes investigation.

Documentation on working conditions. The employer may be required to produce evidence that the H-1B worker is receiving working conditions equivalent to U.S. workers if Department of Labor undertakes investigation.

The original signed LCA and a copy must be filed at the Department of Labor regional office with jurisdiction over the work site listed on the LCA.The Department of Labor within seven (7) working days will certify the LCA.Only after an LCA is certified a petition may be filed with the Immigration and Naturalization Service (INS) to obtain permission to hire the H-1B worker.

The INS petition is filed on From I-129 with the INS Service Center with jurisdiction over the work site. The INS Service Center normally takes four to six weeks to adjudicate the petition. Only after the petition is approved may the H-1B worker take the approval notice to the U.S. consulate to obtain an H-1B visa to enter the United States. If the petition has indicated the H-1B worker is already present in the U.S. in valid status, the worker may commence employment after the approval of the H-1B petition. Approval of an initial H-1B may be given for three (3) years and extension of stay may be granted to a maximum period of stay of six (6) years.

The employer has several continuing obligations once the initial approval of the H-1B is received. If the H-1B worker is assigned to work sites not listed on the original LCA, additional steps must be taken. These steps include a new posting at the additional work site or the filing of a new LCA (with a new prevailing wage determination, actual wage calculation and posting), depending on whether the new work sites are within the area of employment listed on the original LCA. The INS through the filing of an amended petition must approve any material changes in the employment described in the H-1B petition. The INS interprets the assignment to additional work sites requiring a new LCA to be a material change requiring the filing of an amended petition.

The employer also has an obligation to produce its LCA documentation to any requester (the public inspection file) or to the Department of Labor (all documentation). The Department of Labor may investigate the employer’s LCA based either on a complaint from an aggrieved party or on its own initiative. A Department of Labor’s finding that an employer has violated the LCA requirements, such as through “willful” failure to post a notice of the LCA filing, could result in monetary penalties and debarment from filing LCA’s or permanent labor certifications, or obtaining approval of H, L, O and P nonimmigrant or employment based immigrant petitions for at least one year.

Finally, the employer has an obligation to pay the costs of return transportation for any H-1B worker whose period of employment is terminated prior to the expiration date of the worker’s status. The INS expects the employer to meet this obligation, although it does not directly verify compliance.

For further information, send your query to Aparna Davé.