H1B Status for DOD Cooperative Research and Development Workers (H1B2)

H1B2 status as cooperative research and development workers

 

Introduction: H1B Status for DOD Cooperative Research and Development Workers

H1B status is authorized for a very limited number of aliens entering to render services relating to a Department of Defense (DOD) cooperative research and development or coproduction project. This category is referred to by United States Citizenship and Immigration Services (USCIS) internally as H1B2 [AFM 31.3(a)(3)]. Only 100 H1B2 DOD project aliens may be in the United States on H1B status at any time. H1B2 applicants must meet the same specialty occupation education and experience requirements that H1B specialty occupation applicants must meet. However, there are certain unique rules regarding H1B2 status, most notably that the maximum period of stay is 10 years instead of 6. In this article, we will examine the rules for H1B2 classification and status.

Legislative Background

The H1B2 category for DOD cooperative research, development, and coproduction projects was passed into law in section 222 of the Immigration Act of 1990, PL 101-649 (Nov. 29, 1990), 104 Stat 4978. IMMACT90 sec. 222(a) sets the following requirements for an alien to be accorded H1B2 status:

1. has a residence in a foreign country which the alien has no intention of abandoning, and
2. is coming to the United States, upon a basis of reciprocity, to perform services of an exceptional nature requiring such merit and ability relating to a cooperative research and development project or a coproduction project provided under a government-to-government agreement administered by the Secretary of Defense, but not to exceed a period of more than 10 years, or who is the spouse or minor child of such an alien if accompanying or following to join the alien.

Additionally, IMMACT90 sec. 222(b) states that no more than 100 aliens may be accorded H1B2 status at any given time.

Also of note, IMMACT90 sec. 222(a)(2) sets the maximum period of stay at 10 years for H1B2 workers as opposed to 6 years for other H1B workers.

Implementing Regulations and Agency Guidance

USCIS implements the H1B2 program through its regulations.

8 C.F.R. 214.2(h)(4)(vi)(A)(1) states that “services of exceptional nature relating to cooperative research and development projects or coproduction projects” must require a baccalaureate or higher degree, or its equivalent, to perform the duties. In this respect, the requirements to qualify as an H1B2 worker are similar to the requirements to qualify as a regular H1B specialty occupation worker. This is also noted in AFM 31.3(a)(3). The regulation notes that “[t]he existence of this special program does not preclude the DOD from utilizing the regular H-1B provisions provided that the required guidelines are met.” This means that the DOD may file a regular H1B petition for a specialty occupation worker to fill a position that could be filled by an H1B2 worker. However, the regular H1B petition would be subject to the normal H1B rules and regulations.

8 C.F.R. 214.2(h)(4)(vi)(A)(2) exempts the H1B2 classification from the labor condition application requirement that exists for other H1B petitions.

8 C.F.R. 214.2(h)(4)(vi)(B) lists the requirements for an H1B2 petitioner:

1. The petition must be accompanied by a verification letter from the DOD project manager for the particular project stating that the alien will be working on a cooperative research and development project or a coproduction project under a reciprocal Government-to-Government agreement administered by DOD. Details about the specific project are not required.
2. The petitioner shall provide a general description of the alien's duties on the particular project and indicate the actual dates of the alien's employment on the project.
3. The petitioner shall submit a statement indicating the names of aliens currently employed on the project in the United States and their dates of employment. The petitioner shall also indicate the names of aliens whose employment on the project ended within the past year.

The regulations require the DOD project manager to verify that the petition is for an H1B2 eligible position. However, the DOD project manager is not required to submit specific details about the project. The petitioner must give a general description of the beneficiary's duties on the project to establish that the beneficiary will be working in a capacity that qualifies him or her for H1B2 status. In addition, the petitioner must submit the dates of the beneficiary's intended employment and include information about aliens who are currently employed on the same project in the United States.

8 C.F.R. 214.2(h)(4)(vi)(C) requires the petition to include evidence that the beneficiary has a baccalaureate or higher degree or its equivalent in the occupational field in which he or she will be performing services on the DOD project. Please read our article about the H1B degree requirement and H1B degree equivalency to learn more [see article].

8 C.F.R. 214.2(h)(9)(iii)(A)(2) states that an H1B2 petition may be valid for an initial period of up to 5 years. 8 C.F.R. 214.2(h)(15)(ii)(B)(2) allows for an H1B2 worker to be approved for an extension period of up to 5 years so long as the total period of stay does not exceed 10 years.

AFM 31.3(e) instructs USCIS adjudicators to receive explicit authorization before approving an H1B2 petition for a DOD project alien due to the “severe numerical limitations.”

Under 8 C.F.R. 214.2(h)(13)(iii)(B), an alien who spends 10 years on an H1B2 project may not seek an extension of stay, change of status to H or L status to perform services involving a DOD research and development project or coproduction project. Furthermore, a new petition for or change of status to H or L may not be approved for such an alien unless he or she has resided and been physically present outside of the United States (save for brief trips for business or pleasure) for the immediate prior year.

Conclusion: H1B Status for DOD Cooperative Research and Development Workers

H1B2 status diverges from regular H1B petitions in the limited types of employment that it allows and the longer maximum period of stay. However, the beneficiary requirements to qualify as an H1B2 DOD project alien are similar to those for regular H1B status. The limitation of 100 H1B2 workers at any given time greatly limits the scope of the program. However, it is important to remember that the DOD may file a regular H1B petition on behalf of an alien for a position that would otherwise be an H1B2 position.

Resources and Materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 951-52, Print. Treatises & Primers.

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H1B Visa