Temporary Worker In a Specialty Occupation (H1B)

The H1B visa category is available for individuals who are to be employed by a United States employer in a "specialty occupation."  The law defines "specialty occupation" as an occupation which requires: "theoretical and practical application of a body of specialized knowledge," and "attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States."

Given the popularity of this visa category, the annual cap has frequently been a topic of debate.  Currently, the law allows the issuance of 65,000 new H1B visas each fiscal year (beginning on October 1 of each year).  There is an additional 20,000 visas available for workers who hold U.S. Master's degrees.  The USCIS has been conducting random "lotteries" for a number of years now.  However, the USCIS has recently issued proposed new procedures, which when instituted will change how new petitions are submitted and selected.  Please note that this cap, however, does not apply to requests made by H1B workers in the United States requesting a change of employer, amended petition or extension of status.

Requirements

For all H1B petitions, the United States Citizenship an Immigration Services (USCIS) requires employer to submit evidence satisfying the following criteria:

• A bachelor's or more advanced degree (or its equivalent) is ordinarily the minimum requirement for entry into the position;
  
• The degree requirement is common to the industry in parallel positions among similar organizations or the particular position is so complex or unique that it can be performed only 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 is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or more advanced degree
  

In order for the prospective H1B worker to qualify to perform in a specialty occupation, he or she must meet one of the criteria listed by the USCIS:

• "(1) Hold a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;
  
• "(2) Hold a foreign degree determined to be equivalent to a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;
  
• "(3) 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
  
• "(4) Have education, specialized training, and/or progressively responsible experience that is equivalent to completion of a United States 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."
  

Procedure

The employer must follow a two-step process: submitting a labor condition application (LCA) with the U.S. Department of Labor; and filing an I-129 petition with supporting documentation with the USCIS.

On the LCA, the employer makes attestations involving pay, working conditions and notice to U.S. workers of its intention to hire a foreign worker.  These attestations are a means of ensuring that the H1B worker is employed under the same working conditions and pay scale as those existing for U.S. workers.  The employer must state on the LCA that it will pay the H1B worker the "prevailing wage" for the occupation in the intended area of employment, as determined at the time of filing the LCA.