H-1B Specialty Occupations
For Employers looking to hire an H-1B professional, and employees looking to take advantage of the H-1B visa category we provide the complete H-1B package service, retain us and receive the following services:
- Advise you and the employee on your rights and responsibilities
- Determine whether the position qualifies for an H-1B visa
- Determine whether the professional’s background qualifies for the H-1B position
- Draft and file the Labor Condition Application with the U.S. Department of Labor
- Prepare and file the I-129 H-1B Petition to obtain visa for employee
- Guide employee through interview at a U.S. consulate abroad if employee is outside the U.S.
- Respond to any Requests for Evidence (RFE) the government may issue on the case (additional fees may apply)
- Advise on ongoing compliance with visa requirements
- Help with preparation of Public Access File – which must be maintained by the Employer for every H-1B worker they employ
- Help with I-9 Employment Eligibility Verification
- Counsel in regard to travel in and out of U.S. in H-1B status
General H-1B visa requirements:
Note that the H-1B visa category has become very highly regulated. Petitioners must establish eligibility under the Immigration and Nationality Act and satisfy requirements established by both the U.S. Department of Labor and the U.S. Citizenship and Immigration Services.
General requirements for H-1B visa category:
Requirement 1. An H-1B visa number must be available at the time of filing the petition, unless the petition is exempt from numerical limits. The H-1B visa has an annual numerical limit, or 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), a nonprofit research organization, or a government research organization are not subject to this numerical cap. The rate at which the cap numbers are used up varies, but most often, the number of applications exceeds the allowable cap within the first few days of the start of the application season. The U.S. government’s fiscal year starts on Oct. 1. H-1B petitions can be filed up to 6 months before the start date. This makes April 1 the first day a new cap-subject H-1B petition may be submitted to the government for an October 1 start date. However, multiple preparatory steps must be taken to prepare the petition for filing, and it is recommended that the petitioning employer and the potential H-1B employee discuss the issue with an immigration attorney at least two months before the April 1st season start date.
Requirement 2. A beneficiary must have an employer-employee relationship with the petitioning U.S. employer. In general, a valid employer-employee relationship is determined by whether the U.S. employer may hire, pay, fire, supervise or otherwise control the work of the H-1B worker.
Requirement 3. The position offered to the H-1B employee must qualify as a specialty occupation within the meaning of the law by meeting one of the following criteria:
- A bachelor’s degree or higher degree or its equivalent is normally the minimum requirement for the particular position;
- The degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor’s degree in a field related to the position;
- 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 the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
Requirement 4. The proffered position must be in a specialty occupation related to the H-1B employee’s field of study. If the H-1B employee does not have at least a bachelor’s degree in a field related to the proffered position, then the employee may qualify by trough one of the following ways: by holding an unrestricted state license, registration or certification which authorizes the employee to fully practice the specialty occupation and be immediately engage in that specialty in the state of intended employment; or the employee possesses education, specialized training, and/or progressively responsible experience that is equivalent to the completion of a U.S. bachelor’s or higher degree in the specialty occupation, and possesses recognition of expertise in the specialty. In general, 3 years of work experience or training in the field is considered as equivalent to 1 year of college.
Requirement 5. The H-1B employee must be paid at least the actual or prevailing wage for your occupation, whichever is higher. The prevailing wage is generally determined based on the position in which the employee will be employed and the geographic location where the employee will be working. The U.S. Department of Labor (DOL) maintains a database with applicable current prevailing wage levels based on occupation and work location. The actual wage is a wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question.
To demonstrate that the employee will be paid the appropriate wage, the petitioning employer must submit a Labor Condition Application (LCA) for the proffered position, certified by the Secretary of Labor, which states, in part that:
- The employer is offering and will offer during the period of authorized employment to aliens admitted or provided status as an H-1B non-immigrant wages that are at least the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or the prevailing wage level for the occupational classification in the area of employment, whichever is greater, based on the best information available as of the time of filing the application.
The employer must make numerous other attentions on the Labor Condition Application, including:
- That the employment of H-1B nonimmigrants will not adversely affect the working conditions of workers similarly employed in the area of intended employment.
- That the employer will not employ an H-1B worker at a location where a strike or lockout in the occupational classification is occurring, and notify ETA of any future strike or lockout; and
- That on or within 30 days before the date the LCA is filed with ETA, provide notice of the employer’s intent to hire H-1B workers. The employer must provide this notice to the bargaining representative of workers in the occupation in which the H-1B, H-1B1, or E-3 worker will be employed. If there is no bargaining representative, the employer must post such notices in conspicuous locations at the intended place(s) of employment, or provide them electronically.
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1184(i)(l) defines the term “specialty occupation” as one that requires:
(A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.
The term “specialty occupation” is further defined at 8 C.F.R. 5 2 14.2(h)(4)(ii) as:
An occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.
Pursuant Title 8 Code of Federal Regulations, section 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of the following criteria:
( 1 ) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
( 2 ) 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;
( 3 ) The employer normally requires a degree or its equivalent for the position; or
( 4 ) The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
If you are an employer contemplating sponsorship and hiring of an H-1B worker, or if you are an employee looking to be hired by an H-1B sponsoring petitioner, please contact us for an evaluation of your eligibility by clicking here.