H-1B Specialty Occupation

The H-1B visa is a non-immigrant visa by which a foreign national is given the ability to work in the United States for a set period of time (Two, three year terms for a total of 6 years).  The H-1B visa is an employment based visa, such that an employer must sponsor the employee or beneficiary of the visa. In order to qualify for the H-1B visa, the foreign national must hold a bachelor's degree or higher degree from an accredited college or university in a specific specialty occupation.  The H-1B visa is a visa that is subject to numerical limitations.  This means that a total of 85,000 visas are available each fiscal year.  Of the 85,000 visas, 20,000 of these visas are restricted for individuals who have received master's degrees or higher from US colleges and universities).  The limitation is referred to as the H-1B CAP. 

In most circumstances, an H-1B visa is obtained through an annual lottery that takes place as of April 1 of a particular year.  Employers file a Form I-129, along with supplements and supporting documentation establishing the nature of specialty occupation, the nature of the work involved, the specifics of the work involved, the qualification of the beneficiary and information about the employer and how the employer will maintain control over the beneficiary.  The I-129 Petition and all supporting documentation can only be filed with USCIS on or after April 1 of a particular year.  Yearly, USCIS issues instructions on how long the acceptance period for the H-1B visa petition will last.  This means that I-129 Petitions will be accepted for a given period of time.  After the period of acceptance closes (closing of the H-1B CAP), USCIS will conduct a random lottery to determine which petitions will be accepted and rejected.  

GENERAL REQUIREMENTS:

  • Specialty Occupation:  the occupation being sought to be filled must be a specialty occupation.  A specialty occupation is one that generally requires a bachelor's degree or higher degree (or its equivalent) as minimum for entry into the particular occupation. 
  • Education and Credential Evaluation: if an alien was awarded their degree from a foreign institution, the degree must be evaluated to determine whether it is equivalent to a U.S. awarded bachelor's degree. If the alien possesses a bachelor's degree or its equivalent, no specific work experience is required.  However, if the alien does not meet the educational requirements, then experience and training may be substituted to obtain the additional year or years needed to qualify as equivalent to a U.S. awarded bachelor's degree. 
  • Labor Condition Application (LCA): the employer must comply with the Department of Labor regulations by obtaining a LCA through the Department of Labor. The LCA is a prerequisite to the filing of an H-1B.  In this document, the employer makes certain certifications and affirmations related to the following: (1) the employer will pay the H-1B worker the higher of the actual wage or the prevailing wage for the particular occupation; (2) the employment of the H-1B worker will not adversely affect the working conditions of the workers similarly employed in the intended area of employment; (3) there is no current strike/lockout involving the prospective H-1B worker's position as the workplace; (4) the employer will provide notice of filing of the LCA to its employees, collective bargaining representative, or will post the LCA at the work site on the date the LCA is filed or within 30 day before it is filed and remain posted for 10 days; (5) the employer will maintain a public access file, including the LCA, documentation to support the salary paid to the H-1B employee, explanation of how the actual wage was determined, and documentation for the basis of the prevailing wage; (6) the employer must agree to pay the alien the reasonable cost of transportation to return to their home country if the employer terminates the employment prior to its authorized employment period.
  • US Employer: for an alien to obtain an H-1B visa, an employer must make a bona fide job offer and have the ability to pay the employee.  An employer seeking to sponsor an H-1B alien must be a US employer.  A US employer is a person, firm, corporation, contractor or other association or organization in the US with an IRS tax identification number known as a Federal Employer Identification Number (FEIN).  There must be an employer-employee relationship indicated by the fact that the employer is responsible for hire, fire, pay, supervision and overall control of the employee. 
  • H-1B Dependent Employer: is an employer that essentially hires too many H-1B employees. These employers are subject to additional attestations requirements  According to the Department of Labor, an employer is considered H-1B dependent if they fall into one of the categories listed below (20 C.F.R. § 655.736(a)): 
    • An employer has 25 or fewer full-time employees of which more than seven are H-1B employees
    • An employer has between 26 to 50 full-time employees of whom more than 12 are H-1B employees. 
    • An employer has more than 50 full-time employees of which 15% or more are H-1B employees. 

DEPENDENTS

Family Members of the H-1B worker are admitted in the H-4 visa category.  Qualifying family members include only the spouse and unmarried children under the age of 21 years of age.  These family members are admitted to the US for the same period for which the principal H-1B holder is admitted.  H-4 family members can engage in studies, but cannot be employed with the exception of those H-4's who qualify for an H4EAD, with either an approved I-140 or a PERM application pending for more than 365 days. 

DUAL INTENT VISA

Although the H-1B visa is a non-immigrant visa, whereby a foreign individual is granted the ability to work in the US for a limited period of time, immigration laws and USCIS regulations allow this visa holder to have a dual intent allowing the foreign individual to have an employer sponsored immigrant petition filed on their behalf. 

 



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