H-1B (Specialty Worker)

Purpose of H-1B / The H-1B Cap / Specialty Occupation / Labor Condition Application / H-1B Petition / Periods of Admission and Extensions / Family Members

Overview: The H-1B Visa

The H-1B visa allows U.S. employers to hire foreign-born professionals.

To qualify for an H-1B visa, one must be a:

  • Foreign-born professional engaged in a specialty occupation; or a
  • Foreign-born fashion model of distinguished merit and ability.
  • The H-1B application process consists of three major steps:
  • The U.S. employer must file a Labor Condition Application (LCA) with the Department of Labor.
  • Once the LCA is approved, the U.S. employer must file the application on Form I-129, Petition for Nonimmigrant Worker, with USCIS (United States Citizenship and Immigration Services).
  • The Employer must submit evidence reflecting its ability to pay the employee and evidence proving the employee is qualified for the position.

It is important to note that the H1B visa is a temporary visa-it does not lead to permanent residency, but does give an individual temporary status and the ability to work for the sponsoring employer in the specified position. H-1B workers are not required to maintain a foreign residence abroad, and they have the ability to pursue permanent residency (through labor certification, etc.) while they are in the United States in H-1B status.

The H-1B Cap

Regular H-1B Cap – 65,000 visas per year

Each fiscal year, the USCIS grants 65,000 H-1B visas. Of these 65,000 visas, 6,800 are reserved for the H-1B1 program for nationals of Chile and Singapore. The fiscal year begins on the first date the employee is allowed to begin employment based on the H-1B visa. For the 2009 fiscal year, that date is October 1, 2008.

Employers may file H-1B petitions six months before the October 1, 2008 start date. For the 2009 fiscal year, the United States Citizenship and Immigration Services (USCIS) will begin accepting applications on April 1, 2008. The fiscal year 2008 cap was reached on the very first day applications were accepted. Thus, employers wishing to sponsor persons for H-1B visas should submit their H-1B petitions as close to April 1, 2008 as possible.

It is important to note that the cap only applies to the new employment of an H1B worker. For example, if an employer applies to extend the status of a current H-1B employee, the extension is not counted against the cap. Likewise, if a person who has already been counted against the cap seeks employment with a new company, the new company may apply for an H-1B petition without being subject to the cap. However, this will not be true if the H-1B worker is moving from an exempt employer to a non-exempt employer because, in that case, the H-1B worker’s visa has not previously been counted against the cap.

Exemption from H-1B Cap for Persons with a U.S. Master’s Degree or higher – 20,000 visas per year

The first 20,000 H-1B visas issued to individuals with a U.S. master’s degree or higher in a specialty related to the intended employment are exempt from the H-1B cap. Employers do not have to make a special showing that a U.S. master’s degree or higher is required for the position they seek to fill by employing the H-1B worker.

Exemption from H-1B Cap for Persons who Work at Certain Employers

Persons may be exempt from the H-1B cap if they work at institutions of higher learning or if they are employed in nonprofit research. In order to qualify, the H-1B worker is required to be employed by the employer who qualifies for the exemption, but the H1B worker does not have to be employed by the exempt employer. For example, a doctor employed by a medical group, but who provides services at a university hospital, would be exempt from the H-1B cap.

The following employers are exempt from the H-1B cap:

  • Institutions of higher education as defined in the Higher Education Act of 1965 (universities and colleges) and affiliated organizations; or
  • Non-profits associated with an institute of higher education; or
  • Non-profit research organizations or U.S. government research organizations.

Such a nonprofit organization or entity includes, but is not limited to, hospitals and medical research institutions. “Related to” or “affiliated with” means the entity is connected to or associated with the institution of higher education through shared ownership or control by a board or federation operated by the institution of higher education, or is attached to the institution of higher education as a member, branch, cooperative, or subsidiary.

“Nonprofit organization or entity” means the organization or entity is defined as a tax exempt organization under IRS regulations and has been approved as a tax exempt organization for research or educational purposes by the IRS.

Specialty Occupation

An employer seeking to employ an H-1B worker must establish that the prospective employee is qualified to undertake the services required for the “specialty occupation.” A specialty occupation is one that requires the theoretical and practical application of a body of specialized knowledge, along with at least a bachelor’s degree (the degree must be in a field that is relevant to the position) or its equivalent.
To establish that a job qualifies as a specialty occupation, on of the following four criteria must be met:

  • A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position
  • The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position 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; or
  • The nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree

Examples of specialty occupations include: accounting, architecture, business specialties, education, engineering, health and medicine, law, and theology. Although a Licensed Vocational Nurse does not qualify as a specialty occupation for the purposes of an H1B visa, certain nurse positions that require at least a bachelor’s degree may qualify.

Labor Condition Application

As a prerequisite to obtaining the services of an H-1B worker, an employer must first file a Labor Condition Application (LCA) with the U.S. Department of Labor.

The LCA has two purposes:

  • It protects U.S. workers by requiring employers to attest that the employment of H-1B workers will not adversely affect the working conditions of U.S. workers similarly employed; and
  • It protects H-1B workers from exploitation by requiring employers to attest that they will pay the required wage rate and will offer prevailing working conditions to those workers.

The Department of Labor typically requires employers to submit the LCA electronically through its LCA Online System. After an LCA has been approved, it is valid for three years.

Public Inspection File: within one business day of filing the LCA, the employer must make available for public inspection the LCA and any supporting documentation. The public access file must be maintained by the employer for one year after the termination of employment of the last alien worker under that LCA.

The public inspection file must include: a copy of the LCA with evidence that the LCA was filed, a statement of the salary paid to the H1B worker, the prevailing wage for the H1-B worker’s position, the source for the prevailing wage determination, and an explanation of how the employer determined the wage for the H1B worker.

H-1B Petition

After receiving approval of the LCA, an employer must file Form I-129, Petition for Nonimmigrant Worker, for the foreign-born employee it seeks to hire. The employer must file the approval notice for the LCA with the Form I-129.

Employers may file an H-1B petition six months before the start of the fiscal year, which begins October 1, 2008. This means employers may submit petitions starting April 1, 2008 but the employee may not start work until October 1.

When filing Form I-129, the employer must show that the position the employer seeks to fill qualifies as a specialty occupation. The employer must also show that the foreign-born employee qualifies for the position based on his or her experience. In order to fulfill the experience requirement, the employer must demonstrate that the foreign-born employee has any professional licenses, including state licenses, required for the position, as well as the requisite education and qualifications.

The employer must pay three sets of fees for an H-1B petition:

  • The standard filing fee for Form I-129, Petition for Nonimmigrant Worker of $320 (plus, any fees for Premium Processing and any applicable consulate fees if the employee is abroad);
  • A $1,500 training and education fee (Employers with less than 25 full-time employees are required to pay a reduced fee of $750.00.);A $500 fraud detection and prevention fee.

Periods of Admission and Extensions

H-1B visas are issued for an initial period of three years (not to exceed the period of validity of the certified LCA), at which point the employee may apply for an extension for another three years. The total maximum period of stay is six years.

However, there are circumstances in which an H1B alien may apply for an extension of stay beyond the limit of six years. An exception to the six-year rule exists for employees who have a labor certification application, or a Form I-140, Petition for Alien Worker, that was filed on their behalf and that has been pending for at least 365 days. In these cases, employers may apply for one-year extensions beyond the six-year period for their employees. Employers may seek multiple one-year extensions while the employee’s application for permanent residency is pending..

Family Members

Family members (spouses and unmarried children under 21) may accompany, or follow to join, the H-1B visa holder in the U.S. as H-4 dependant(s). Family members are admitted for the same period of time for which the principal family member is admitted. Persons with H-4 status may study, but may not work in the United States. In order to work, family members must obtain USCIS permission through the approval of a change of status application wo a nonimmigrant category permitting employment.

As with H-1B2 visas, H-1B visas are valid from six months to three years – although, the visas can typically be renewed for a total stay of six years. In addition, the H1B visa is what is known as a “dual intent” visa, meaning that an individual with an H1B visa can also apply for a Green Card for legal permanent residency in the US. If you are seeking an H-1B visa today, contact immigration attorney Marc P. Feldman to help you get the results you deserve.

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