H-1B Visas for Specialty Occupation

H-1B Process

The H-1B visa process involves three steps when the employee currently is in the U.S. in a different immigration status or in H-1B status working for a different employer. An additional step is required if the prospective employee is outside the U.S. or after the approval of the H-1B petition, the individual must apply for an H-1B visa from a U.S. consulate abroad.

The first step is to determine the prevailing wage. This determination may be made in one of two ways. One way to determine the prevailing wage is by submitting a Prevailing Wage Determination request to the Department of Labor (“DOL”). Such a request describes the prospective employee’s job duties and the employer’s minimum requirements (education, experience, etc.) for the position. DOL then issues a Determination which provides the wage that the employer must guarantee to pay the employee.

Another way to determine the prevailing wage is by reviewing wage information released by the DOL. This wage information is available online. If the job duties and requirements are straightforward, the employer may review this information and make its own determination of the prevailing wage. If the employer is able to determine the prevailing wage for the position, it is not necessary to submit the application for Prevailing Wage Determination to DOL.

The second step is to submit the Labor Condition Application (“LCA”). The LCA is completed online and submitted electronically to DOL. The LCA is a relatively short application and seeks information about the employer, the prevailing wage, and the job description. By completing and submitting the LCA, the employer is making certain attestations, such as guaranteeing: to pay the prevailing wage, not to fire a U.S. worker to hire the foreign worker, and not to employ the foreign worker under conditions worse than those which apply to the employer’s U.S. workers.

After the LCA is submitted, the employer must post a notice advising its workforce of the filing of the LCA. The notice must be posted in the place of employment for ten business days. This posting advises the other employees the employer is filing an application for a visa for a foreign worker and allows the employees (and anyone else with adverse information) to alert DOL if the employer is violating the attestations made in the LCA.

After the application is submitted electronically, DOL will review and “certify” the application. Generally, this is done within seven days.

The third step is to file an I-129 petition to obtain H-1B status for the employee. After the LCA is certified, the I-129 petition for H-1B status is filed with U.S. Citizenship and Immigration Services (“USCIS”).

The I-129 petition must be accompanied by evidence establishing: (1) the petitioning employer is a bona fide entity with a legitimate job position; (2) the position is a “specialty occupation,” that is, it requires a bachelor’s degree or higher in a particular field; (3) the individual possesses that degree and is otherwise qualified for the position; and (4) the individual currently is in valid immigration status (if in the U.S.).

H-1B Cap

The H-1B visa has an annual numerical limit, or a cap, of 65,000 visas each fiscal year. The government’s fiscal year begins on October 1 and ends on September 30 of the following year. An additional 20,000 H-1B visas are available for prospective workers who possess master’s degrees, or higher degrees, from U.S. accredited universities.

Additionally, H-1B workers who are employed at an institution of higher education or an affiliated or related nonprofit entities, a nonprofit research organization, or a government research organization, are not subject to this numerical cap. This type of petition is commonly referred to as a cap exempt petition.

Because the H-1B cap has been reached within the first few days every year for the last several years, USCIS has instituted a random lottery system to determine which petitions for H-1B status will be adjudicated. As a result, all employers that file petitions subject to the cap must file their petitions within the first five business days in April (180 days before the start of the government’s fiscal year). Assuming USCIS receives a sufficient number of petitions to meet the cap within these five days, it will then conduct the random lottery to determine which petitions to adjudicate. Petitions which are not selected in the lottery are returned to the employer. Cap exempt petitions may be filed at any time during the year.

If a petition is selected in the lottery and subsequently approved, the approval of H-1B status is effective as of October 1, the first day of the government’s fiscal year.

Period of Stay

Normally, an H-1B petition is approved for an initial three year period. It may be extended for an additional three years. Further, in certain situations, the employee may be eligible for additional extensions beyond the normal six year maximum.

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