U.S. Immigration And The Specialty Occupation Minefield: An H-1B Compendium, Part 2

In my previous post, I explained the H-1B Cap lottery process and described the general steps employers must take to file their petitions during the H-1B Cap window in April. In this post, I will specify the H-1B requirements, define some key terms, and describe the evidence that must accompany the H-1B petition.

An H-1B worker is defined by the Immigration and Nationality Act as a beneficiary who: (i) is temporarily coming to the United States (ii) to perform services in a specialty occupation; (iii) is of distinguished merit and ability; and (iv) for whom the H-1B employer has attested to the Secretary of Labor that it will pay the higher of either the prevailing wage or the actual wage paid to its other workers of similar experience and qualifications in that position. Now, let me dissect those requirements.

First, the H-1B visa is for temporary workers and is granted for no more than three years at-a-time. Furthermore, once an H-1B worker first obtains H-1B status, he or she will have a maximum of six years to physically work in the U.S. During that time, the H-1B worker can change employers, but doing so does not extend the six-year limitation on the stay. There is a narrow exception to this six-year period for H-1B workers who are in the process of getting their permanent residence, which is a topic I will save for a future blog post.

Second, to be eligible for H-1B status, the H-1B worker must be employed in a specialty occupation. The Code of Federal Regulations defines specialty occupation as “an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, 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.” In other words, as I have emphasized the key language in this definition, the occupation itself has to require highly specialized knowledge that can be attained only in a bachelor’s or higher degree program in a specific specialty.

Third, the H-1B worker has to demonstrate his or her distinguished merit and ability by virtue of possessing at least a bachelor’s degree or its equivalent in the specific specialty field. To meet this requirement, the H-1B worker must either: (i) have obtained the requisite degree from a U.S. college or university; or (ii) have a foreign degree determined to be equivalent to a degree earned from a U.S. college or university; or (iii) hold an unrestricted state license that authorizes practicing the occupation; or (iv) be recognized as an expert in the specialty field on the basis of education, specialized training, and/or progressively-responsible experience. The H-1B worker is required to provide his or her credentials, including diploma(s), transcript(s), and experience letter(s), to prove that he or she meets the educational requirements for the H-1B position. He or she must also supply certified translations of the required documents if they are in a language other than English.

Lastly, the H-1B employer must obtain certification from the Secretary of Labor of a Labor Condition Application (“LCA”). The LCA serves to safeguard the interests of the American worker by requiring the H-1B employer to attest that it will pay the H-1B worker the higher of either the prevailing wage or the actual wage it pays to its employees of similar experience and qualifications in that specialty position. Typically, the prevailing wage is derived from the U.S. Department of Labor’s (“USDOL”) own survey of wages for specific occupations in specific counties or Metropolitan Statistical Areas that are in effect for a one-year period. The H-1B employer electronically files the LCA to identify the specialty occupation, its corresponding wage, and the validity period for which it seeks to employ the H-1B worker. The employer also attests in the LCA to pay the wage and notify its employees of its intent to hire an H-1B worker by posting the LCA for ten consecutive days in two clearly-visible locations on the premises where the H-1B worker will perform his or her duties. The H-1B employer can file the H-1B petition with the U.S. Citizenship and Immigration Services (“USCIS”) only after the LCA has been certified by the USDOL and signed by the employer.

The law puts the burden on the H-1B employer to prove its eligibility when filing a petition. Accordingly, it is essential for the H-1B employer to submit a petition that can withstand both procedural and substantive scrutiny. Procedural scrutiny implies including appropriate and accurately-completed forms, attaching the correct filing fees, and submitting the petition to the correct USCIS service center. Substantive scrutiny refers to articulating effective arguments and providing sufficient evidence about why the employer and the worker meet the H-1B eligibility requirements.

The H-1B employer must provide proof of its existence, operations, and financial strength. This includes marketing materials describing the company’s business, leadership, and clients, as well as a valid lease and photographs evidencing its physical premises. The H-1B employer must also typically provide tax returns, wage reports, and contracts demonstrating current and future financial capacity to pay the H-1B wage to the worker for the entire duration of the H-1B period.

The evidence that the H-1B worker must supply to the employer includes identity documents such as a passport and a driver’s license. If the worker is in the U.S. in H-1B status for another employer or in another lawful status, he or she must also provide copies of immigration documents authorizing his or her current status, as well as IRS Forms W-2 and pay stubs to prove he or she has maintained that status. Finally, the H-1B worker must also provide a current resume, together with a diploma(s) and transcript(s). If the worker obtained his or her degree(s) outside the U.S., the USCIS will also require a credential evaluation that analyzes and evaluates the educational equivalency to degree(s) earned at U.S. institutions of higher education.

In my third installment of this four-part series on H-1B visas, I will examine the policy behind USCIS’s aversion to third-party worksites (i.e. where an H-1B worker performs the services of the specialty occupation at a company different from the actual H-1B employer), and discuss how H-1B employers can strengthen their petitions when facing such scrutiny.

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Immigration Law