Who is Eligible for H-1B Visa Status?

The H-1B visa is available to professionals who will be accepting a temporary position in a  “specialty occupation” in the United States.  The U.S. Citizenship & Immigration Service (“CIS” – formerly, the INS) defines a specialty occupation as one requiring: (1) the theoretical and practical application of a body of highly specialized knowledge, and (2) the attainment of a bachelors-level degree or its equivalent in experience in that specialty as a minimum requirement for entry into the occupation.  For example, most computer or engineering related occupations are eligible for the H-1B category.  An H-1B visa can be obtained for an initial period up to three years, and the employer can obtain extensions of the visa up to a total of six years.

What Steps are Involved in the H-1B Petition Process?

The H-1B visa status petition process requires three steps: (1) determining the prevailing wage; (2) obtaining certification of a Labor Condition Application from the federal Department of Labor; and (3) filing the H-1B visa petition with CIS.  Once the petition is approved, there is a fourth step – visa stamping in the beneficiary’s passport — but this does not need to be done right away in all cases.

Step 1 Determining the prevailing wage for the position offered.  The H-1B regulations require that the employer pay the proposed employee the greater of the “actual wage paid by the employer to all other similarly-employed persons, or the prevailing wage for that occupation and area.”  The most common method by which the prevailing wage for a position is determined is by making a request for such a determination to the state employment department. This now can be done online in many states. The state employment department reviews a job description provided by the employer, and makes a determination of the current prevailing wage for that position based on various wage surveys and other sources.  If the prevailing wage is higher than the actual wage paid to similar employees, the employer must agree to meet the prevailing wage rate.  In the alternative, the employer also may use a published wage survey for determining the prevailing wage.  However, the alternative survey must meet certain regulatory criteria.

Step 2 Filing the Labor Conditions Application (“LCA”).  Upon receipt of the prevailing wage determination (or making a determination based on a salary survey), the employer must complete an LCA form and post it for 10 business days in its offices.  Through the LCA, the employer is making several attestations to the government, including that there is no strike or lockout and that it will pay the appropriate wage for the position.  Once the LCA has been signed by the employer and posted, it may be filed with the Department of Labor for certification (approval).  Under a new “electronic filing” system, most LCAs can be processed on the Internet through the Department of Labor, making certification quite fast.

Step 3 Filing the H-1B visa petition with CIS.  The visa petition consists of the appropriate petition, supporting forms, and supporting letter and documentation from the petitioner and beneficiary.  Upon receipt of the certified LCA from the Department of Labor, the employer may file the visa petition with the CIS.  CIS will approve the petition; deny the petition; or request additional information from the employer.  For those cases that come under the “portability” transfer rules for H-1Bs, the H-1B employee may begin work with the new employer as soon as the CIS has issued a receipt for the filing of the visa transfer petition.

Following Step 3, most applicants (unless “visa exempt”) will require an H-1B visa stamp in their passport prior to traveling to the US and appropriate arrangements must be made through the US embassy or consulate for a visa interview appointment.  At certain US embassies and consulates, the appointments might take several months to obtain and so appropriate planning should be done.

Construction defect cases often include claims that defective products were involved, and that the defects in the products caused or contributed to the damages in the affected structure. In most states, products liability claims of this type are actionable so long as they are brought within a reasonable amount of time. The maximum amount of time to bring suit on a products liability claim is typically measured from the discovery of the defect or resulting damage.[1] If the case is in Oregon, however, special attention may be required because such claims are controlled by a statute of limitations that runs for two years from the date on which the damage occurred, without regard to discovery.[2]

For example, suppose a building in Oregon that is clad with synthetic stucco (EIFS) is suffering water intrusion. If the building owners wish to bring a claim against the EIFS manufacturer, that claim will need to be squared with the decision of the Oregon Supreme Court in Gladhart v. Oregon Vineyard Supply Company.[3] The Gladhart opinion states that there is no discovery rule in Oregon’s products liability statute of limitations.[4] Thus, the owner of this hypothetical EIFS-clad building would need to commence an action against the EIFS manufacturer within two years after the damage occurred — regardless of whether the damage or defect had actually been discovered — or face finding this claim time-barred.[5]

Clever lawyers might attempt to extend the time frame in which a products liability suit may be brought by alternatively pleading a products liability claim as a claim for negligence. However, under Oregon law, this will likely be an unsuccessful means of avoiding the products liability statute of limitations.[6] A more effective strategy may be for a third party to bring the products liability claim as a claim for indemnity or contribution, and argue that those actions are controlled by a lengthier statute of limitations that runs from the date of payout by a third party.[7] The theory of contribution or indemnity, and a consequently longer limitations period, fits best in a products liability case where an innocent party in the product supply chain has been sued in a timely manner. However, that is not necessarily how claims for indemnity and contribution arise against manufacturers in construction defect cases. In construction defect cases, the parties asserting such claims are typically actively involved in designing around, modifying or installing the allegedly defective building product. Furthermore, the third party plaintiffs are frequently sued on other causes of action and are not joined within the brief window of time for products liability actions. Thus, in cases such as these, there is a good argument that the much shorter products liability statute of limitations[8] controls any products liability claim.

When the Oregon Supreme Court pointed out this unusual wrinkle of Oregon law in the Gladhart opinion, they also indicated a solution. The court noted that the legislature has the power and ability to draft a discovery rule if it so desires.[9] Perhaps not surprisingly, the Oregon legislature has changed Oregon’s products liability statute of limitations to add an express discovery rule, which applies to injuries or damages that occur after January 1, 2004.[10] Where damages may have occurred earlier, careful attention is needed to make sure that product defect claims in Oregon meet the fast-moving deadline imposed by the two-year statute of limitations.

For more information, e-mail Joel Leonard at joel@eoplaw.com or call 503-224-7112.

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1. See, e.g., FLA. STAT. § 95.011(3); 95.031(2)(b) (2002) (four years from discovery); 735 ILL. COMP. STAT. 5/13-213 (2001) (two years from discovery); Fidler v. E.M. Parker Co., 394 Mass. 534, 476 N.E.2d 595 (1985) (two years from discovery); Martz v. Weyerhaeuser Company, 965 S.W.2d 584 (Tex. App. 1998) (two years from discovery).
2. As set forth in footnote 10, below, the statutory scheme described in this article applies to products liability damages or injuries which occur before January 1, 2004.
3. 332 Or. 226, 26 P.3d 817 (2001).
4. OR. REV. STAT. § 30.905(2) (2001).
5. As happened in Evenstad v. Culp, Yamhill County Circuit Court case no. CV00312, where summary judgment was awarded against the building owner, and in favor of the EIFS manufacturer, on the basis of the Gladhart opinion and OR. REV. STAT. § 30.905(2).
6. See Lindemeier v. Walker, 272 Or. 682, 685, 538 P.2d 1266 (1975) (stating that the “predominant characteristic [of the action], not plaintiff’s election, governs” the time within which an action must be brought).
7. See Huff v. Shiomi, 73 Or. App. 605, 699 P.2d 1178 (1985), but query whether the rule of Huff has complete vitality after Gladhart. See also OR. REV. STAT. § 12.080 (2001) (declaring that the statute of limitations for indemnity or contribution is six years).
8. OR. REV. STAT. § 30.905(2) (2001).
9. Gladhart v. Oregon Vineyard Supply Co., 332 Or. 226, 233, 26 P.3d 817 (2001) (“[W]hen the legislature intends to condition commencement of a limitation period on the discovery of the harm, it knows how to express that intention.”).
10. See H.B. 2080, 72nd Leg., Reg. Sess. (Or. 2003), 2003 Oregon Laws, chapter 768, all soon to be codified in OR. REV. STAT. § 30.905 (2003). The changes brought by this now-enacted bill include, among others, discovery rules and a ten year statute of repose for damages that occur on or after January 1, 2004.

2010 Postscript

Gladhart v Oregon Vineyard Supply, the legal opinion that generated the article above, was decided by the proposition that “when the legislature intends to [do something]…, it knows how to express that intention.”  In response, the Oregon Legislature has now twice modified the statute of limitations for product liability actions in Oregon.  Gladhart still bars all products liability cases in Oregon where damages occurred before January 1, 2004.  But the 2003 Legislature enacted an explicit two year discovery rule that applies to cases where the damage occurred after January 1, 2004 (Or Laws 2003, ch 768).  In 2009, the Legislature again revisited this limitation statute, to clear up ambiguity in the collateral limitation period that now unambiguously runs ten years from the date the product was first purchased for use or consumption (Or Laws 2009, ch 485) and to add a special provision allowing use of longer foreign limitations periods.  And death gets separate treatment.   Call Joel Leonard, or see the current version of ORS §30.905, for details.

“PERM” is the first of three phases in the permanent residence process for foreign workers, and refers to the “permanent labor certification application” process in which the federal Department of Labor reviews an employer’s application to determine whether qualified US workers are available for a particular job.  The entire process is governed by federal statutes, regulations, policy and case law, and so must be carefully planned.

The employer must be able to show a pattern of recruitment for the particular position during the six months preceding the date of filing the labor certification application.  The recruitment does not necessarily have to be a recruitment conducted for the particular candidate who is now applying for labor certification – just for the same type of position.  The employer does not necessarily need to show that recruitment efforts occurred during each of the past six months, but at least two or three  months probably should be represented in the recruitment advertising provided to the Department of Labor (“DOL”).

The recruitment advertising must occur in several types of media, such as newspapers, Internet, in-house postings, etc., and the number and type of ads is dictated by the federal regulations.  The employer must be able to document all of its recruitment efforts, both by keeping copies of ads and in describing the number of applicants and the reasons for their rejection.  The employer must be able to show that there were no available, qualified U.S. workers for the offered position.  Without proper documentation, the application will fail.

Once the recruitment phase is complete and appears to meet the regulatory criteria, the application for permanent labor certification is submitted to the DOL for review.  The DOL may approve, deny, or audit the application.  An audit may involve the DOL requesting more information about certain aspects of the application, the employer and/or the foreign worker.  An audit also will cause the DOL process to be much slower than it might otherwise.

Second Step: Immigrant Visa Petition

After the federal Department of Labor approves the permanent labor certification application, the employer-sponsor and applicant file an immigrant visa petition with the Citizenship & Immigration Service (“CIS”).  The purpose of this petition is to classify the job and the applicant into the appropriate immigrant category, review whether the employer and job are bona fide, ensure that the employer can pay the applicant the offered wage, and to ensure that the applicant is qualified for the job.  This step can take six to twelve months on average.

Third Step:  Adjustment of Status Application*

After CIS approves the immigrant visa petition, the applicant may either (1) apply for an immigrant visa through the U.S. Embassy in his or her home country; or (2) apply for “Adjustment of Status” to permanent resident through the CIS if he/she currently is legally residing in the United States.  The application process through the U.S. Embassy can take six to twelve months on average.  The Adjustment of Status process through CIS can take one year or several years, depending on many factors.  During the Adjustment process, though, the applicant may be issued a temporary work permit and travel permission documents.

*many applicants must wait in immigrant visa waiting lists (due to visa quota backlogs) — sometimes for several years– before becoming eligible to file for Adjustment of Status or pursue Consular Processing of their immigrant visa.

Note:  Please note that this is only a summary of the “green card” process and that each case is different, and that any time estimates mentioned are just that  - estimates.  In addition, laws, policies and regulations change from time to time, which affects the process.

Tyler J. Volm

Tyler Volm practices in the areas of business formation, financing and governance, contracts, real estate, and general litigation.

He is a Portland native, graduating from the University of Oregon with honors, receiving a B.A. in English and Political Science, before returning to Portland to attend Lewis and Clark Law School. While there he focused his studies on business law, graduating cum laude and receiving a certificate in general business law.

He continues to enjoy the splendors of the Northwest including running, hiking, camping and rooting for the hometown Portland Trailblazers.

He is a member of the Oregon and Washington State Bars, and the Multnomah Bar Association.