H-1B Specialty Occupation Visas

Overview

The H-1B visa applies to individuals seeking employment in a specialty occupation.  Specialty occupation is defined as a position that usually requires a bachelor’s degree or higher in a specific field.  Essentially the H-1B visa is for professional workers. 

The following are the essential elements of an H-1B visa petition:

• The applicant must have a job offer from a U.S. employer.
• The minimum qualification for the position must be a bachelor’s degree in a specific field, or the equivalent through a combination of education and/or work experience.
• The applicant must actually possess the degree related to the position, or have an equivalent qualification through a combination of education and/or work experience.
• The employer must comply with U.S. Department of Labor regulations by filing a Labor Condition Application, and by agreeing to pay the prevailing wage for the position.

The Employer

An employer is defined as a person, firm, corporation, contractor, or other association, or organization in the United States that has an Internal Revenue Service Tax identification number. 

The position offered by the employer must meet at least one of the following criteria:

• The minimum requirement for entry into the particular position must normally be a bachelor’s degree or higher or its equivalent; or
• The degree requirement is common to the industry in parallel positions among similar organizations; or
• The employer normally requires a degree or its equivalent for the position; or 
• The nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a bachelor’s degree or higher degree. 

The employer is liable for the reasonable costs of return transportation to the H-1B visa holder’s foreign residence if the employee is dismissed from employment before the end of the period of authorized admission. Dismissal does not include circumstances where the employee voluntarily terminates his or her employment.

The Applicant

The applicant must meet one of the following criteria: 

• Have a U.S. bachelor’s degree or higher required by the occupation; or
• Have a foreign degree determined to be equivalent to a U.S. bachelor’s degree or higher degree required by the occupation; or
• Have an unrestricted state license, registration or certification which authorizes him or her to fully practice the occupation and be immediately engaged in that position in the state of intended employment; or 
• Have education, specialized training, and/or progressively responsible work experience that is equivalent to completion of a U.S. bachelor’s degree or higher degree in the occupation, and have recognition of expertise in the profession through progressively responsible positions directly related to the occupation.

Applicant’s Credentials:

Applicants who do not have a U.S. degree or the equivalent may nevertheless qualify for H-1B status. In some cases, an applicant’s foreign degree, or education, specialized training, and/or progressively responsible work experience can be determined to be the equivalent of a U.S. bachelor’s degree or higher degree required by the occupation.

Our law firm uses a third party service provider that is recognized by the Immigration Service as a reliable credentials evaluation service which specializes in accrediting foreign educational qualifications.”

Prevailing Wage

The U.S. employer must agree to pay the H-1B non-immigrant the “prevailing wage” for the occupation.  The prevailing wage is defined as the average wage earned by similarly employed U.S. workers in the same geographic location.

Our law firm researches the prevailing wage for a particular occupation in the geographic area where the applicant will be employed, by obtaining wage surveys from the U.S. Department of Labor and other authoritative sources. 

Labor Condition Application

The employer must attest that it will not violate Department of Labor regulations.  For this purpose, the employer must file a Labor Condition Application (LCA) with the Department of Labor.  The LCA must make the following attestations:

• The employer agrees to pay an H-1B non-immigrant 100% of the local prevailing wage or the actual wage rate paid by the employer to all other individuals with similar experience and qualifications for the specific position, whichever is higher.  In addition, the employer agrees to provide the H-1B non-immigrant with benefits on the same basis as U.S. workers;
• The employer will provide working conditions for non-immigrants which will not adversely affect the working conditions of similarly employed U.S. workers;
• The employer asserts that there is no strike or lockout in the occupational classification at the place of employment; and
• The employer agrees to post notice that the LCA was filed.

The purpose of the LCA is to ensure that U.S. workers who are similarly employed will not be adversely affected or discouraged from applying fora job that they otherwise would have the opportunity to attain.

Our law firm will prepare all the documentation required for the employer to comply with the Department of Labour regulations.

The H-1B Cap

The number of H-1B visas available each year is limited by quota. The quota recharges on October 1 each year.  Petitions for each fiscal year may be filed as early as April 1.  If approved, they will be effective as of October 1 in that year.

Exceptions - Not all H-1B applicants are subject to the cap. Please see Schedule A for a list of exemptions.

Filing Procedure for the H-1B Visa

The H-1B visa petition is filed at an Immigration Service Center within the United States.  An H-1B petition will typically consist of:

• A job offer letter from the U.S. employer (as drafted by our firm);
• Immigration Forms G-28, I-129, I-129 Supplement H, and I-129 Data Collection Supplement;
• Proof of citizenship;
• Proof of credentials required for the position offered;
• Payment of the applicable filing fee; and
• A cover letter from our firm to the Immigration Service outlining the application and demonstrating the applicant’s eligibility for the H-1B visa.

Fees

Our law firm charges flat fees for legal work.  Clients are therefore better able to budget for their immigration matters. Work is only undertaken on an hourly basis if previously approved by the client. Legal fees differ for each matter and are quoted in reference to the complexity of particular case.   

Apart from some limited exceptions, the following fees apply to all H-1B visa petitions:

• Filing fee of $190.
• American Competitiveness and Workforce Improvement Act fee of between $750 and $1,500.  Employers with less than 25 full-time employees in the U.S. (including employees of affiliates and subsidiaries) pay $750. Employers with more than 25 full-time employees pay $1,500. Exceptions – Please see Schedule B for a list of exceptions.
• Fraud Prevention and Detection fee of $500.

Unique fees - Additional fees may be payable for premium processing cases and for applicants requiring a credentials evaluation service.

Timing 

In most cases, an individual cannot commence work until their H-1B visa is approved.

Regular Processing - Time frames for approving petitions can vary widely depending on the individual Service Center and on existing backlogs.  It normally takes two to three months for a petition to be approved.

Premium Processing – An H-1B visa petition can be adjudicated in 15 calendar days for payment of an extra $1,000 to the Immigration Service.  Please note that while premium processing takes a maximum of fifteen calendar days, the Immigration Service may request additional evidence and this will extend the processing time.

Visa Issuance

Please note that all visa applicants (except Canadian citizens) are required to obtain an H-1B visa stamp from a U.S. Consulate abroad in order to enter the United States.

If the visa applicant is currently in the U.S. in valid status and subsequently changes to H-1B status, he/she can work without first obtaining the visa stamp. However, the visa stamp must be obtained in order to enter the U.S. at a later date.

Individuals who are approved for H-1B status while in the United States can obtain a visa stamp from the U.S. Consulate in their home country, or any other U.S. Consulate that permits the processing of “third party nationals”.  The U.S. Consulate in Toronto, Ontario in Canada is one example of a U.S. Consulate that accepts H-1B visa processing for nationals of other countries.

Duration of the Visa

An H-1B visa is valid for an initial period of three years and can be renewed for a maximum period of a further three years. After this time, the individual must remain outside the United States for one year before another H-1B petition can be approved. Please note that prior L-1 visa status also counts towards the maximum 6-year period authorized for H-1B status. 

Additionally, certain H-1B non-immigrants may extend their status beyond the 6-year period, in one-year increments if 365 days or more have passed since the filing of an immigrant (Green Card) petition.

Family Members

The spouse and children (unmarried and under the age of 21) of an H-1B visa holder may obtain H-4 visas. A spouse or children in H-4 status are not authorized to work while in the U.S. unless they obtain their own visas authorizing such employment. Dependents in H-4 status may attend school in the U.S. on either a part-time or full-time basis.”

Schedule A

Exceptions to the H-1B cap:

• The beneficiary is an employee of a higher education as defined in the Higher Education Act of 1965, section 101 (a), 20 U.S.C. section 1001 (a) 
• The beneficiary is an employee of a non-profit organization or entity related to or affiliated with an institution of higher education, as such institutions of higher education are defined in the Higher Education Act of 1965, section 101 a), 20 U.S.C. section 1001 (a) (The definition is attached for your reference)
• The beneficiary is an employee of a non-profit research organization or a governmental research organization, as defined in 8 CFR 214.2(h)(19)(iii)(C)
• The beneficiary is a J-1 non-immigrant alien who received a waiver of the 2-year foreign residency requirement described in section 214 (1)(1)(B) or (C) of the Act.
• The beneficiary has been previously granted status as an H-1B non-immigrant in the past 6 years and not left the United States for more than one year after attaining such status.
• The petition is to request a change of employer, in case that the beneficiary previously worked as an H-1B for an institution of higher education, an entity related to or affiliated with an institution of higher education, or a non-profit research organization or governmental research institution.
• The beneficiary has a master or higher degree from a U.S. institution of higher education, as defined in the Higher Education Act of 1965, section 101 (a), 20 U.S.C. section 1001 (a)
  

Schedule B

The following categories of employers and employees are exempt from the American Competitiveness and Workforce Improvement Act fee:

• The employer is an institution of higher educationas defined in the Higher Education Act; or
• The employer is a non-profit organization or entity related to, or affiliated with an institution of higher education; or
• The employer is a non-profit research organization or governmental research organization, that is primarily engaged in basic research and/or applied research; or
• The petition is the second or subsequent request for an extension of stay filed by the employer regardless of when the first extension of stay was filed;
• The petition is an amended petition that does not contain any requests for extension of stay filed by the employer; or
• The petition is to correct an Immigration Service error; or
• The employer is a primary or secondary education institute; or
• The employer is a non-profit entity, which engages in an established curriculum-related clinical training, or students register at the institution.