VISAS FOR H-1B TEMPORARY WORKERS IN SPECIALTY OCCUPATIONS
By: Gary Chodorow
Rev: Jan. 1, 2006

Purpose of Visit to U.S.:

The foreign national must be coming to the U.S. for the purpose of temporary employment in a "specialty occupation." A specialty occupation is one which "requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor, 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." The position may be full-time or part-time.

Foreign National Qualifications:

The foreign national must be fully qualified to perform services in the specialty occupation, and must meet at least one of the following criteria:
 

• Hold a U.S. baccalaureate or higher degree required by the specialty occupation from an accredited college or university;

• Hold a foreign degree determined by a reliable credentials evaluation service which specializes in evaluating foreign educational credentials to be equivalent to a U.S. baccalaureate or higher degree required by the specialty occupation from an accredited college or university;

• Hold an unrestricted State license, registration, or certification which authorizes him or her to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment ; or

• Have education, specialized training, and/or progressively responsible experience that is equivalent to completion of a U.S. baccalaureate or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

In addition, if an occupation requires a state or local license to fully perform the duties of the occupation, a foreign national seeking H-1B status must have that license prior to the approval of the petition. If a temporary license is available, H-1B status may be granted if the foreign national will fully perform the duties of the occupation. If a state allows an individual without licensure to fully practice an occupation under the supervision of licensed senior or supervisory personnel, USCIS may grant the H-1B petition if the foreign national will fully perform the duties of the occupation. In addition, if the sole licensure requirement which the foreign national does not meet is legal status in the U.S., USCIS may grant the petition based on a letter from the licensing agency that the license will be granted upon approval of the H-1B petition.

Labor Condition Application:

The U.S. employer must file with the Department of Labor a Labor Condition Application (LCA) promising, among other things, to pay at least the prevailing wage (average wage paid to workers in the occupation in the geographic area) or the actual wage (wage paid by the employer to similarly qualified workers in the occupation), whichever is higher. The employer must retain certain documentation showing it has kept its promises.

Petition:

After approval of the LCA, the employer must file an H-1B petition with USCIS.

Employer Qualifications:

The petition can be filed by any U.S. employer.

Quota:

There is an annual numerical cap (i.e., quota) of 65,000 H‑1B petitions. Once the quota has been reached, USCIS will not approve new H-1B petitions for employment to begin until the following fiscal year. The following foreign nationals are exempt from the quota, so H-1B petitions can be approved on their behalf notwithstanding the quota:
 

• A foreign national offered employment at an institution of higher education, a related or affiliated nonprofit entity, a nonprofit research organization, or a governmental research organization.

• Any foreign national who has already been counted towards the quota within the 6 years prior to approval of their H-1B petition will not be counted again towards the quota unless they would be eligible for a new 6-year time limit in H-1B status.

• A foreign national who has earned a master's or higher degree from a United States institution of higher education, until the number of foreign nationals who are exempted from such numerical limitation during such year exceeds 20,000.

Nonimmigrant Intent:

The foreign national need not maintain a foreign residence and need not have a nonimmigrant intent. As long as the foreign national is willing to abide by the terms of the H-1B visa, he may apply for permanent resident status.

Family Members:

The H-1B worker may be accompanied to the U.S. by their spouse and unmarried children under 21 years old, who receive H-4 status.

Timing for Approval:
 

• The Labor Condition Application is usually filed online and certified by the Department of Labor instantly.

• To check current USCIS processing times for H-1B petitions in the Service Center with jurisdiction over the place of employment, see https://egov.immigration.gov/cris/jsps/index.jsp. Or, by paying an extra fee of $1000 for "premium processing," USCIS will guarantee processing within 15 days.

• For those foreign nationals who need to apply for a visa at a U.S. Consulate abroad to enter the U.S., check the wait times at http://travel.state.gov/visa/temp/wait/tempvisitors_wait.php.

• Under provisions for "H-1B portability," certain persons previously classified in H-1B status may begin employment with a new employer upon the filing of an H-1B petition by the new employer, rather than waiting for the H-1B petition to be approved.

Costs:
 

• There is a mandatory $185 filing fee for every H-1B petition.

• Certain H-1B petitions must be accompanied by a fee for scholarships, training U.S. workers, and H-1B administration. That fee is $1500 except that the fee is $750 for petitions by an employer "with not more than 25 full-time equivalent employees who are employed in the United States (determined by including any affiliate or subsidiary of such employer)." It is a violation of law for the employer to require an H 1B worker to reimburse, or otherwise compensate, the employer for part or all of such fee. It is also a violation of law for the employer otherwise to accept such reimbursement or compensation from the H 1B worker. Fee exemptions exist for certain employers: (1) a nonprofit or government research organization primarily engaged in basic or applied research; (2) a primary or secondary education institution. (3) an institution of higher education; (4) a "nonprofit entity (including but not limited to hospitals and medical or research institutions) that is connected or associated with an institution of higher education through shared ownership or control by the same board or federation operated by an institution of higher education, or attached to an institution of higher education as a member, branch, cooperative, or subsidiary" and (5) A "nonprofit entity which engages in established curriculum-related clinical training of students registered at" any "institution of higher education."

• A $500 fraud prevention and detection fee is imposed on an employer filing a petition either (1) "initially to grant an alien [H-1B] status"; or (2) "to obtain authorization for an alien having such status to change employers."

• As explained above, a $1000 premium processing fee is optional.

Time Limit in the U.S.:

Upon approving an H‑1B petition, USCIS may authorize a foreign national's stay in the U.S. in H‑1B status for up to 3 years. Subsequent petitions may extend H‑1B status up to a total of 6 years. Extensions of H-1B status beyond 6 years are possible only in limited circumstances.