The H-1B visa is reserved for individuals seeking to enter the U.S. temporarily in a specialty occupation or as a fashion model of distinguished merit and ability. A “specialty occupation” is an occupation that requires the theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation. Typical positions include law, accounting, technology, engineering, architecture, mathematics, physical sciences, business specialties, theology and the arts. The job must actually require a bachelor’s degree or its equivalent to qualify for an H-1B and the fact that an individual possesses a bachelor’s degree or the equivalent does not mean that the job necessarily requires the same.
In cases where the specialty nature of the position is not self-evident, many types of evidence may be used to prove that the job is, in fact, a specialty occupation. Trade journals and publications may be used, affidavits from professionals in the field may be submitted and evidence of the employer’s own past hiring practices can be helpful.
The easiest way to demonstrate that the individual has a bachelor’s degree or the equivalent is by demonstrating that the individual beneficiary has a diploma. However, the diploma must be in a field of study that is relevant to the position sought. If this is not the case, then transcripts and possibly a course catalog should also be submitted.
If the beneficiary did not attend school in the U.S., the degree must be evaluated by a credentials evaluation service to ensure it is at least equal to a U.S. bachelor’s degree.
The other way that an applicant can demonstrate that he or she is qualified to work in a specialty occupation is through work experience or a combination of education and experience. Three years of progressive work experience is equal to one year in college.
One of the most challenging issues with regard to the H-1B visa is that there is a numerical limitation to the number of H-1B visas that may be issued in every fiscal year. There is currently a limit of 65,000 visas available every fiscal year beginning on October 1st. There are an additional 20,000 visas set aside every fiscal year to individuals who possess a U.S. Masters degree or higher. In addition, there are some jobs in the non-profit sector, government and education that are exempt from the numerical limitation. Certain physicians who are under the CONRAD State 30 program or receiving a federal government agency waiver are also exempt from the cap. The cap does not apply to applicants who are only seeking an amendment, extension or transfer of their current H-1B visa.
Employers must carefully time and plan for the filing of H-1B applications well in advance of the beginning of the fiscal year in order to avoid being prevented from obtaining H-1B workers. The employer may apply as early as 180 days before the fiscal year begins. In recent years the H-1B cap has been reached on the first day of eligibility to file and CIS has instituted a lottery system. Thus, submitting the application on the first day possible is crucial.
The main advantage of the H-1B visa is that, unlike other nonimmigrant visas, it is a “dual intent” visa. This means that it is irrelevant whether the H-1B holder intends to remain in the U.S. temporarily, or to pursue permanent residence. The H-1B holder can simultaneously be filing for lawful permanent residence without affecting the H-1B visa.
Another critical advantage to the H-1B category is that the employer has the ability to sponsor anyone for an H-1B visa without having to demonstrate that there is a shortage of qualified U.S. workers. Unlike the permanent labor certification process, the employer does not need to show that there are no willing, qualified and able U.S. Citizen or Lawful Permanent Residents who can do the job. The employer must file a labor condition application with the DOL to attest that the employer will pay the higher of the prevailing wage or actual wage paid to other U.S. employees, that the employer is not interfering with or using the foreign national to defeat strikes or lock outs, that the employer will maintain a public access file, and that the job has been publicly posted at the job site for the requisite period of time.
The prevailing wage is determined by the Department of Labor. The prevailing wage is the wage that is paid to similarly employed workers in the same geographic area where the beneficiary will be employed. The employer must attest to the DOL that the employer will pay the higher of the actual wage the employer pays to other workers or the prevailing wage paid to similarly employed workers in the geographic area where the beneficiary will be employed.
Once the wage information has been obtained, the employer submits a Labor Condition Application (LCA) to the DOL. The DOL will review the information on the LCA and then certify the position. The certified LCA petition is submitted to USCIS as part of the H-1B petition package.
The LCA is designed to ensure that foreign national workers are not being exploited by employers and to ensure that U.S. workers wages are not being deflated by foreign workers. To attempt to do this, the LCA requires the employer to attest that:
The employer must also maintain a public access file that may be viewed by anyone. This file must include a copy of the LCA, a statement of the actual wage received by the H-1B worker, the prevailing wage, including its source, whether the state or a private survey is used, a memo from the employer explaining the actual wage determination, and evidence that the LCA has been filed.
The H-1B visa is granted in three year increments for a maximum of six years. After this time, the H-1B worker must remain outside the U.S. for one full year before another H-1B petition can be approved. Certain individuals may remain beyond six years and extend the H-1B for one year increments if:
H-1B visas are employer and location specific. The petitioning U.S. employer may place the H-1B worker on the worksite of another employer or client, but the employer would then have to follow the procedures for re-posting of the position and obtaining a new prevailing wage at the location. H-1B workers may work part-time on an H-1B and may work for more than one U.S. employer, but must have a separate approved H-1B for each employer.
Each time a worker moves to a new employer, a new H-1B approval is required. However, it is not necessary to leave and get a new visa stamp. USCIS and the State Department take the position that as long as the visa remains unexpired the applicant remains in H-1B classification and may enter on that H-1B visa with an employer letter and approved petition from the new H-1B employer.
The H-1B portability provisions make it an attractive option of foreign national workers. Under these provisions, H-1B workers can begin working for a new employer as soon as the new employer files an H-1B petition for the worker with USCIS. The employer does not need to wait for the petition to be approved before beginning work.
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