H-1B Visa

The H-1B visa allows U.S. employers to employ foreign workers temporarily in specialty occupations. A specialty occupation requires the application of specialized knowledge and a bachelor’s degree or the equivalent of work experience. The initial duration of stay is up to three years and can be extended to six years. The U.S. government allocates a limited number of initial H-1B petitions every year: currently 65,000 plus an additional 20,000 for foreign nationals who possess master’s or other advanced degrees.

How is ‘specialty occupation’ defined?

Federal law defines ‘specialty occupation’ to mean an occupation that requires:

  1. Theoretical and practical application of a body of highly specialized knowledge, and
  2. 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. 

What are the criteria for specialty occupation?

A specialty occupation position must meet one (1) of the following four (4) criteria: 

  1. Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position.
  2. The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, the job is so complex or unique that it can be performed only by an individual with a degree. 
  3. The employer normally requires a degree or its equivalent for the position.
  4. The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree. 

What are the qualifications for a specialty occupation worker?

A foreign national is qualified to perform as a specialty occupation worker if he or she:

  1. Holds a U.S. bachelor’s or higher degree required to enter the specialty occupation from an accredited college or university;
  2. Holds a foreign degree determined to be equivalent to a U.S. bachelor’s or higher degree required to enter the specialty occupation;
  3. Holds an unrestricted state license, registration, or certification that authorizes the foreign national fully to practice the occupation and be immediately engaged in that occupation in the state of intended employment; or
  4. Has education, specialized training, and experience that is equivalent to training acquired by the attainment of a U.S. bachelor’s or higher degree in the field. 

What must employers do to submit an H-1B petition?

Employers must complete three preliminary steps before submitting an H-1B petition: obtain a prevailing wage determination; file a labor condition application (LCA) and post a completed LCA within the allotted timeframe. Once these three steps are taken, the employer may file the H-1B (Form I-129) petition.

H-1B Visa Challenges

Third-party placement

The evidence that the sponsoring employer provides may consist of a master service agreement (MSA), statement of work (SOW), purchase order, or letter from the end-customer. Service agreements, statements of work, and purchase orders often lack the detail required by the USCIS. Therefore, a detailed letter from the client on letterhead that explains why the foreign national needs to be at a third-party site and details his or her specialized knowledge can provide critical support for the H-1B petition. Above all, the employer should also provide documentation that they, and not the customer, has the right to control, supervise, direct, and review the foreign national’s work. In addition, in the event of multiple work locations, employers should prepare and submit a detailed itinerary providing information about each of the worksites. 

Posting Labor Certification Application filing notifications

The DOL requires that workers in the same occupation and at the same work location where the H-1B work is to be performed receive notice of the filing of the LCA. Many sponsoring employers are often challenged to ensure that this notice is posted properly at a third party (i.e., customer) location.

Establishing that the position is a specialty knowledge position

Employers must establish, through a preponderance of the evidence, that proffered position meets the criteria for a specialty knowledge position. While evidence of specific day-to-day assignments is not required to establish that the position is a specialty knowledge position, employers may wish to provide such evidence. 

Establishing “employer-employee relationship”

USCIS officers are required to determine whether the employer and the beneficiary have an employer-employee relationship. Specifically, employers must meet one of four factors: that they “hire, pay, fire, supervise, or otherwise control the work of” the foreign national. Although recent efforts to make this definition more restrictive have not succeeded, H-1B petitions that involve third-party placement can expect greater scrutiny involving the employer-employee relationship criterion. Employers should expect to provide documentation of the relationship. 

Bona fide job offer

Employers must attest on the H-1B petition that a bona fide job offer exists at the time of filing, and that it will employ the foreign national in the specialty occupation. To substantiate this, the employer must ensure that all of the information contained in the petition and supporting documents is complete, true, and correct.

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