H-1B Visas

H-1B Visas


 

Specialty Occupations, DOD Cooperative Research and Development Project Workers, and Fashion Models

This visa category applies to people who wish to perform services in a specialty occupation. H-1B visa is a non-immigrant visa designed to allow U.S. employers to recruit & employ foreign professionals in specialty occupations to work in the U.S. for specified periods of time. To qualify for an H-1B visa, the sponsoring employer and potential employee must meet specific requirements. The employer must comply with the H-1B process requirements, in compliance with USCIS regulations and Department of Labor requirements to obtain a Labor Condition Application (LCA).

The U.S. employer must demonstrate that the employment is offered in a specialty occupation, on a full time or part time basis, located within the U.S. and that the prospective employee meets the required qualifications.

Specialty Occupation Requirements

A specialty occupation is an occupation that requires theoretical and practical application of a body of specialized knowledge. In addition, a specialty occupation requires the attainment of a bachelor's or higher degree (or its equivalent) in the specific specialty as a minimum for entry into the occupation. A position that would normally not require a bachelor's degree may qualify as a specialty occupation if the position is so complex or unique that only an individual with a degree can perform the requisite duties. A position with specific duties that are so specialized and complex that the knowledge required to perform them is usually associated with the attainment of a bachelor’s or higher degree may also qualify as a specialty occupation.

Positions that are normally considered professional positions would most likely qualify as a specialty occupation.

Examples of specialty occupations include: architects, engineers, professors, teachers, researchers, medical professionals, dieticians, physicians, computer professionals, accountants, attorneys, social workers, economists, librarians and other professionals.

General Requirements for Specialty Occupation

The job offered to the foreign personnel 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 the applicant 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.

DOL and USCIS Requirements

In addition to both the Occupation requirements and the Education requirements, the employer must also adhere to the Department of Labor (DOL) requirements to obtain a Labor Condition Application (LCA). After the DOL certifies the LCA, the employer must submit Form I-129 to the USCIS for permission to employ the foreign worker under H-1B status, so that the alien worker may be hired.

To successfully complete this process, the employer must first attest that the H-1B visa worker is being paid, at minimum, what is called the “prevailing wage” for the job. The “prevailing wage” is defined by DOL rules as the average rate of wages paid to workers similarly employed in the area of intended employment. The prevailing wage is determined through the National Prevailing Wage Center (NPWC). The following factors determine one’s prevailing wage:

  1. Job title;
  2. Educational and work experience requirements;
  3. Job description;
  4. Job location; and
  5. Type of employer, (i.e. academic, government or private.)

In addition, the employer must attest to the following six conditions:

  1. The employer will pay the H-1B employee the higher of:
    1. The actual wage rate that it pays to all other individuals with similar experience and qualifications, or
    2. The prevailing wage level for the occupation in the “area of intended employment”, which is defined as the Metropolitan Statistical Area (MSA) and the narrower Primary Metropolitan Statistical Area (PSMA).
  2. Employment of the H-1B worker will not adversely affect the working conditions of workers similarly employed in the intended area of employment;
  3. There is no current strike/lockout involving the prospective H-1B worker’s position at his/her workplace;
  4. The employer will provide notice of filing of the labor condition application to the employees’ collective bargaining representative for the H-1B occupation or, lacking such a representative, will conspicuously post such notice at the work site onthe date the labor condition application is filed,or within 30 days before it is filed, and shall remain posted for 10 days;
  5. The employer will maintain for public examination:
    1. A copy of the Labor Condition Application filed,
    2. Documentation of the salary paid to the H-1B employee,
    3. An explanation of how the actual wage was determined, and
    4. Documentation of the basis used for the prevailing wage;
  6. The employer must agree to pay the alien the reasonable cost of transportation to return to his or her home country if the employer terminates the alien’s employment prior to the end of the authorized employment period.

Caveat: U.S. Employer Sponsorship Requirement

For an alien to obtain an H-1B visa, an employer must make a job offer and be willing to sponsor the alien by filing a petition with the USCIS. Generally, individuals cannot apply for an H-1B visa to allow them to work in the US. The U.S. employer must petition for the entry of the employee.

An employer seeking the services of an H-1B alien and filing the necessary papers to obtain such services must be a "U.S. employer." A U.S. employer is a person, firm, corporation, contractor or other association or organization in the United States with an IRS tax identification number known as a Federal Employer Identification Number (FEIN). There must be an employer-employee relationship, as indicated by the fact that the employer may hire, fire, pay, supervise or otherwise control the work of the employee.

There are two major requirements that the employer must fulfill:

  1. The employer must have the ability to pay the employee. For example, if the employer to hire a computer programmer for his start-up company for $60,000 annually; however there is only $1,000 in the company’s bank account. Under the circumstance, the employer fails the ability to pay test.
  2. The job offer to the intended H-1B beneficiary must be a bona fide offer. In other words, there must be a real business need for the position to be filled by the alien worker.

H-1B for Entrepreneurs

On August 2, 2011, USCIS announced and outlined a series of policies to promote the US economy and investment by attracting foreign entrepreneurs with talent or exceptional ability who can create jobs, form start-up companies, and invest capital in areas of high unemployment. USCIS has clarified that a nonimmigrant alien who is the owner of a petitioning company created in the US may establish a valid employer-employee relationship for the purposes of sponsoring an H-1B visa. Not all alien-owned companies can establish an employer-employee relationship, but it is possible to do so. There must be a degree of separation between the alien and his/her company as the employer. The alien cannot be self-employed in the traditional sense and be the beneficiary of an H-1B petition from his/her own company. There must be an independent company entity that can exert hiring/paying/supervising/firing authority outside of the alien-owner’s command in order for that same alien to be an H-1B beneficiary for his/her own company.

H-1B Dependent Employer (Special Circumstance)

If the employer is an H-1B-dependent employer or a willful violator, or a TARP/Federal Reserve Chapter 13 recipient, the employer must attest to the following three elements addressing non-displacement and recruitment of U.S. workers:

  • The employer will not displace any similarly employed U.S. worker within 90 days before or after applying for H-1B status, or an extension of status for any H-1B worker;
  • The employer will not place any H-1B worker employed pursuant to the LCA at the worksite of another employer, unless the employer first makes a bona fide inquiry as to whether the other employer has displaced or intends to displace a similarly employed U.S. worker within 90 days before or after the placement of the H-1B worker; and
  • The employer, before applying for H-1B status for any alien worker pursuant to an H-1B LCA, took good faith steps to recruit U.S. workers for the job for which the alien worker is sought, at wages at least equal to those offered to the H-1B worker. Also, the employer will offer the job to any U.S. worker who applies and is equally or better qualified than the H-1B worker. This attestation does not apply if the H-1B worker is a "priority worker."

Depending on the type of violation committed by the employer, civil money penalties may be assessed ranging from $1,000 to $35,000 per violation. Furthermore, employers who commit certain violations may be prohibited from participating in the H-1B program or other immigrant programs for a minimum of one year, and up to three years, depending on the nature of the violation.

Caveat: It is impossible to list all of the relevant information that a prospective H-1 petitioner/beneficiary needs to know. To see what specific requirements you need to satisfy, it is best to seek a professional opinion from an experienced immigration attorney.

Application Process

Step 1: (only required for specialty occupation and fashion model 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 and distinguished fashion model 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.

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.

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.

Other H-1Bs

H-1B2 Department of Defense Researcher and Development Project Work

The job must meet both of the following criteria to qualify as a DOD cooperative research and development project:

  • The cooperative research and development project or a co-production project is provided for under a government-to-government agreement administered by the U.S. Department of Defense
  • A bachelor’s or higher degree, or its equivalent is required to perform duties.

To be eligible for this visa category 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. The prospective employer does NOT have to file Labor Condition Application (LCA).

H-1B3 Fashion Model

The position/services must require a fashion model of prominence. To be eligible for this visa category you must be a fashion model of distinguished merit and ability.

To qualify, the prospective employer must file Labor Condition Application (LCA).