H-1B Specialty Occupation
The H-1B program allows American companies to employ foreign workers who possess both a theoretical or practical application of a body of highly specialized knowledge and a bachelor’s degree or its equivalent, for a temporary period of time.
H-1B Cap Quota & Registration Lottery
Congress limits the cap quota of new H-1Bs issued annually to 65,000. There are 20,000 additional visas for individuals with US Master’s degrees or higher. Because there are typically more applicants each year than visas allotted, USCIS runs a randomized lottery system to determine who can file an H-1B petition. Starting in March each year, USCIS opens an online registration portal to Employers who wish to sponsor Employees. A registration for each Employee they wish to sponsor is entered, with a government filing fee of $10. At the end of March, the randomized lottery is run and the selected registrations are notified. The Employer will then have a 90 day window from April 1 to June 30 to file an H-1B petition with USCIS on behalf of the Beneficiary Employee.
Employer-Employee Relationship
Individuals cannot self-petition for an H-1B visa to allow them to work in the US. An employer-employee relationship exists if the U.S. employer has the right to hire, pay, fire, supervise, or control the work of the H-1B worker. It is possible for a sole or majority owner of an American company or organization to establish such a relationship if they can demonstrate that they have the right to control the beneficiary’s employment.
Employer Obligations
An employer is obligated by Department of Labor regulations to pay the foreign worker at least the actual or prevailing wage for their occupation, whichever is higher. Employers must attest and be prepared to demonstrate to the Department of Labor (DOL) that they will either pay wages to the H-1B worker that are at least equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the position, or pay the foreign worker the prevailing wage for the occupation in the area of intended employment. Employers make such an attestation when submitting the Labor Condition Application (LCA) with the DOL. When submitting the LCA, the employer must also state the physical location where the employer will be working. The employer must register their FEIN number with the DOL before submitting an LCA. At the time the employer files the I-129 Petition along with the H Supplement, they must sign the certified LCA and maintain public access records and remain H-1B compliant.
The prevailing wage is defined as the average wage paid to similarly employed workers in a specific occupation in the area of intended employment. The prevailing wage is determined based on the occupation and work location where the foreign worker will be employed. Employers can access information on the prevailing wage by visiting the Online Wage Library published by the Foreign Labor Certification Data Center (OFLC).
Educational or Equivalent Component
As previously stated the foreign worker must possess a theoretical or practical application of a body of highly specialized knowledge and a bachelor’s degree or its equivalent in work experience in lieu of a degree. The reason for this is that the applicant must demonstrate that their degree or equivalent work experience is directly related to the specialty occupation they seek. If the foreign worker has attained U.S. bachelor’s degree equivalency from their home country, the foreign degree and foreign transcripts must be evaluated by an accredited credential evaluator who can attest to the equivalency. If the foreign worker does not have a degree or possesses an unrelated degree to the specialty occupation, but has at least 12 years of relevant work experience directly related to the specialty occupation position, the work experience will demonstrate the foreign worker’s theoretical or highly specialized knowledge. USCIS uses a formula of three years of experience = one year of US university.
Process for Filing Petition
If selected in the H-1B Online Registration Lottery, the U.S. employer must petition for entry of the employee by filing USCIS Form I-129 Petition for Non-immigrant Worker, H supplement, data collection supplement, petitioner’s letter describing the proffered position and Beneficiary’s credentials (as they relate to the specialty occupation), supporting documents including but not limited to: the Beneficiary’s Passport ID page (copy), Beneficiary’s resume, Beneficiary’s academic credentials (degree and transcripts), academic evaluation (if the foreign worker possesses a foreign degree), signed certified LCA, prevailing wage information, materials on the company’s business such as brochures/website printouts, company product or service information, expert opinion letters (for candidates with work experience) and paying each of the filing fees for each form. USCIS Form I-907 request for premium processing service is optional. Employers cannot file an H-1B petition or extension for an employee more than 6 months before the employee’s intended start date.
Change of Status vs. Consular Notification
If the Employee is in the US in valid nonimmigrant status, the petition can be filed as Change of Status. The Employee’s status would change over to H-1B on October 1, the first day of the government fiscal year. The next time the foreign national departs the US, they will need to obtain an H-1B visa stamp at a US Embassy or Consulate abroad before returning to the US. While the Change of Status petition is pending, the foreign national should not depart the US. They must be present in the US on the date of filing the petition and on October 1.
If the Employee does not want to switch status immediately or they are outside the US, the petition can be filed as Consular Notification. Once the petition is approved, in order to activate the H-1B status, the foreign national will be required to obtain an H-1B visa stamp in their passport at a US Embassy or Consulate. Once entered the US on the H-1B visa, the H-1B status will start.
Duration of H-1B Status
A foreign worker can be in H-1B status for a maximum period of six years at a time. After that time an individual must remain outside the United States for one year before another H-1B petition can be approved, if selected in the lottery. Certain foreign nationals may obtain an extension of H-1B status beyond the 6-year maximum period, when:
365 days or more have passed since the filing of any application for labor certification (LCA), Form ETA 750, that is required or used by the foreign national to obtain status as an EB immigrant,
365 days or more have passed since the filing of an EB immigrant petition.