The 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.forspecified 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, adhering to USCIS regulations and Department of Labor requirements associated with obtaining a Labor Condition Application (LCA).
The U.S. employer must demonstrate that the employment is offered in a specialty occupation, either on a full or part time basis, located within the U.S. and that the prospective employee has met the required qualifications.
The following sections describe the various requirements that must be met by the employer and the applicant to qualify for an H1B visa.
Specialty Occupation Requirements
The occupation has to be a specialty occupation that generally requires a bachelor's degree or higher degree(or its equivalent) as a minimum for entry into the occupation. Fashion models of distinguished merit or ability may also apply for the H-1B program.
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, dietitians, physicians, nurses, computer professionals, accountants, attorneys, social workers, economists, librarians and other professionals.
The employer must show that the alien worker meets the specific educational requirements to be engaged in the specialty occupation. As a general rule, the alien worker must possess a Bachelor's or higher degree from an accredited college or university and the degree must be a requirement to qualify for the specialty occupation.
If the alien worker was awarded his/her degree from an institution not located in the U.S., that degree must be evaluated to determine if it can be consideredequivalent to a U.S. awarded degree. If the alien possesses a Bachelor’s degree or its equivalent, specific work experience is not required.
If an alien does not meet the educational requirements, experience or training may be substituted, whereby three years of professional experience is considered equivalent to one year of college education (every 3 year of work experience = 1 year of University / College education).
Neil is from India and has been working as a network analyst for more than 6 years. He only has an Associate’s degree with 2 years of college education, but wishes to apply for H-1B status so that he can work in the United States as a network analyst. The minimum educational requirement has been met because every 3 years of related work experience can substitute for 1 year of college education, and his 6 years of work experience make up for the 2 year shortage in terms of educational requirements. Therefore he may apply for an H-1B visa.
Furthermore, if state law requires a worker(such as doctors, dentists, attorneys, CPAs, registered nurses) to obtain a license or professional certification to practice a specific specialty occupation, the alien must hold the appropriate license and be fully qualified to lawfully perform the duties of the position offered.
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:
Educational and work experience requirements;
Job location; and
Type of employer, (i.e. academic, government or private.)
John and Ron are both professors of biochemistry who have the same educational experience and job description. John is employed by a university in New York City, while Ron works for a college in Houston, Texas. Everything else being equal, due to the differences in location and cost of living at these locations, the prevailing wage for John is higher than the prevailing wage for Ron.
Jen and Ryan are researchers in chemistry. Both livein Seattle, Washington and their jobs require the same level of education and work experience. The University of Washington hires Jen, while a private company employs Ryan. Since they are employed in different sectors (i.e. public v. private sectors), their prevailing wages will be different and Jen’s prevailing wage is much lower than Ryan’s prevailing wage.
Jill and Greg are researchers in chemistry.Both livein Washington D.C. and have similar education and work experience. The same private company employs both of them, where Jill is a research scientist and Greg is just a post-doctoral researcher. Since Jill has a higher job title and her job description encompasses more duties, Jill’s prevailing wage will be higher than Greg’s.
Next, the employer must attest to the following six conditions:
The employer will pay the H-1B employee the higher of:
The actual wage rate that it pays to all other individuals with similar experience and qualifications, or
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).
Employment of the H-1B worker will not adversely affect the working conditions of workers similarly employed in the intended area of employment;
There is no current strike/lockout involving the prospective H-1B worker’s position at his/her workplace;
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;
The employer will maintain for public examination:
A copy of the Labor Condition Application filed,
Documentation of the salary paid to the H-1B employee,
An explanation of how the actual wage was determined, and
Documentation of the basis used for the prevailing wage;
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.
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:
The employer must have the ability to pay the employee. For instance, John wants to hire a computer programmer for his start-up company. He promises to pay an alien worker $50,000 for a year of work; however he currently has only $800 in his company’s bank account. Under this circumstance, John fails the ability to pay test;
The job offer to the intended H-1B beneficiary should 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.
On August 2, 2011, USCIS announced and outlined a series of policies to promote the US economy and investment by attracting foreign entrepreneurswith talent orexceptional 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. For more information, please visit our article on “Starting a Business in Which an F-1 / H-1B Visa Holder is a Shareholder or Owner.”
Cap on H-1B Visas
Please note that the number of new H-1B non-immigrant visas issued each year is subject to a cap. The maximum number of visas is capped at 65,000 per fiscal year; counted from October 1 to September 30. Out of these, 6,800 are reserved for Chile and Singapore under certain Free Trade Agreements between these countries and the United States. An additional 20,000 are available specifically to those individuals who have received a Master’s degree or higher from a U.S. institution of higher education. If there are any visa numbers that are unused under the Chile/Singapore quota, they will be used for candidates that fall under the regular cap. Please visit our article on H-1B Cap.
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. Please visit our article on H-1B Dependent Employer.
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.
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