When a United States employer seeks to employ a foreign national temporarily in a specialty occupation in the United States, a strict process must be followed. The foreign national must be sponsored by the employer. First, a labor condition application (LCA) must be electronically filed with the United States Department of Labor (DOL), specifically Form ETA-9035E. The employer, in the LCA, must make specific attestations regarding wages, working conditions, that no strikes or labor disputes currently exist, and that notices have been given to the appropriate bargaining representative. An employer can be sanctioned for failing to meet the requirements or for making any material misrepresentations. The LCA must be certified by DOL, and must accompany the Form I-129, Petition for a Nonimmigrant Worker, H Classification Supplement, an H-1B Data Collection and Filing Fee Exemption Supplement.
The Form I-129 must be filed by a United States employer at the USCIS service center having jurisdiction over the place of employment. If the prospective employee is already lawfully in the United States under another immigration status, Form I-129 may request a change of the beneficiary’s nonimmigration status to H. In the alternative, Form I-129 may request that USCIS notify a U.S. consular post of approval of the petition if the prospective employee is or will be outside the United States. If approved, the USCIS service center will issue a Form I-797 Notice of Action.
To determine if an individual qualifies for a H-1B Visa, the following inquiries must be made:
- is the position a specialty occupation?
- does the beneficiary meet the requirements for the specialty occupation?
A “specialty occupation” is defined as “an occupation 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) is a minimum requirement for entry into the occupation in the United States.”, in addition one or more of the following criteria must be met:
- a bachelor’s degree or higher, or its equivalent, is the minimum entry requirement for the position;
- the degree requirement is common to the industry, or the position is so complex or unique that it can only be performed 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 of the position are so specialized and complex that knowledge required to perform the duties is typically associated with obtaining a bachelor’s degree or higher.
An individual with a degree in a general field or degree in a liberal arts field may be denied H-1B
status by USCIS, as the required degree must be in a specialty field related to the position to be filled. Licensure is also important in proving that the foreign national meets all the requirements for the specialty occupation, such that once the foreign national is admitted, they can immediately engage in employment in the occupation.
There is a limit on the number of H-1B visas issued by the U.S. annually. Only 65,000 are issued per year, and an additional 20,000 are issued for those with a United States master’s degree or higher. If USCIS receives more H-1B Petitions than available H-1B visa numbers, it holds a lottery to perform a random selection process. Further, employers are not permitted to file more than one (1) petition for the same H-1B employee in the same fiscal year. Once approved, the beneficiary may be physically present in the Unites States in H-1B status for six (6) years; however, the initial admission is for up to three (3) years with permissible extensions up to three (3) years.
Finally, the first date that one is eligible to apply for an H-1B visas is April 1 of each year. The foreign national is not qualified to commence work for the employer until October 1, six (6) months later, and only once the petition has been approved.