The H-1B program allows companies in the United States to temporarily employ foreign workers in occupations that require the application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent.
The following explains the basis for H-1B petition:
- New employment, if the beneficiary:
- Is outside the United States and holds no classification;
- Will begin employment for a new U.S. employer in a different nonimmigrant classification than the beneficiary
currently holds; or - Will work for the same employer but in a different nonimmigrant classification.
- Regular Extension if it is to continue the previously approved H-1B employment without change with the same employer
- Change in previously approved employment if you are notifying USCIS of a non-material change to the previously approved employment such as a change in job title without a material change in job duties.
- New concurrent employment, if you are applying for a beneficiary to begin new employment with an additional employer in the same nonimmigrant classification the beneficiary currently holds while the
beneficiary will continue working for his or her current employer in the same classification. - Change of employer (Transfer), if you are applying for a beneficiary to begin employment working for a new employer in the same nonimmigrant classification that the beneficiary currently holds.
- Amended petition, if you are applying to notify USCIS of a material change in the terms or conditions of employment or training or the beneficiary’s eligibility as specified in the original approved petition. Additionally, petitioners requesting H-2A or H-2B substitutions should file as an amended petition.
Initial period of stay in the United States: Up to 3 years. Extensions are possible in up to 3 year increments. Maximum period of stay generally 6 years (extensions beyond 6 years may be possible).
As a beneficiary of the visa, ask yourself the following questions to see if you might qualify:
- Do you have a bachelor’s degree or the equivalent (or equivalent relevant education, experience or training)?
- Will you be working in a “specialty occupation?” (See below)
- Will you be earning a wage?
If you answered yes to most of the questions above, then you may likely qualify for an H-1B Visa.
As an employer (Petitioner requirements) ask yourself the following questions to see if your organization is eligible to sponsor an H-1B work visa:
- Are you an employer, a person, firm, corporation, contractor, or other association or organization, in the United States?
- Do you engage or plan to engage a person to work within the United States?;
- Will you maintain an employer-employee relationship with respect to H-1B employees, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee?; and
- Does the Petitioner has an Internal Revenue Service’s Federal Employer Identification Number (FEIN)?
The petitioner shall submit the following with an H-1B petition involving a specialty occupation:
(1) A certification from the Secretary of Labor that the petitioner has filed a labor condition application with the Secretary,
(2) A statement that it will comply with the terms of the labor condition application for the duration of the H-1B beneficiary’s authorized period of stay,
(3) Evidence that the H-1B beneficiary qualifies to perform services in the specialty occupation.
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If you want to learn more about H-1B petition or about our legal services for the preparation and filing H-1B petitions do contact us at (+1) 202 600 7745, or email us at info@adhikarilaw.com, or make an appointment to speak with one of our attorneys Niranjan Adhikari, Serena Li
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More information about H-1B Program
H-1B Visa Classification will be granted to those who:
- Will perform services in a specialty occupation which requires theoretical and practical application of a body of highly specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation in the United States, and who is qualified to perform services in the specialty occupation because he or she has attained a baccalaureate or higher degree or its equivalent in the specialty occupation;
- Based on reciprocity, will perform services of an exceptional nature requiring exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project or a co-production project provided for under a Government-to-Government agreement administered by the Secretary of Defense; or
- Will perform services in the field of fashion modeling and who is of distinguished merit and ability.
What is a Specialty Occupation to qualify for H-1B
Specialty occupation: means 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.
What are the Criteria for H-1B petitions involving a specialty occupation
(A) Standards for specialty occupation position. To qualify as a specialty occupation, the position must meet one of the following criteria:
(1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
(2) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position 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; or
(4) The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
H-1B Wage Requirement
The H-1B required wage rate will be whichever is greater:
- Offered wage to H-1B worker if no other employee for the position; or
- Actual wage paid to the to all other individuals with similar experience and qualifications for the specific employment in question (DOL ETA Prevailing Wage Determination Policy Guidance, November 2009, provides guide about select right prevailing wage level), the following factors may be considered: Experience, qualifications, education, job responsibility and function, specialized knowledge, and other legitimate business factors); or
- the prevailing wage (for example listed here, https://flcdatacenter.com/OesWizardStart.aspx).
The wage requirement includes the employer’s obligation to offer benefits and eligibility for benefits provided as compensation for services to H-1B nonimmigrants on the same basis, and in accordance with the same criteria, as the employer offers to U.S. workers.
Beneficiary qualifications
To qualify to perform services in a specialty occupation, the Beneficiary must meet one of the following criteria:
(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.
(D) Equivalence to completion of a college degree. Equivalence to completion of a United States baccalaureate or higher degree shall mean achievement of a level of knowledge, competence, and practice in the specialty occupation that has been determined to be equal to that of an individual who has a baccalaureate or higher degree in the specialty and shall be determined by one or more of the following:
(1) An evaluation from an official who has authority to grant college-level credit for training and/or experience in the specialty at an accredited college or university which has a program for granting such credit based on an individual’s training and/or work experience;(2) The results of recognized college-level equivalency examinations or special credit programs, such as the College Level Examination Program (CLEP), or Program on Noncollegiate Sponsored Instruction (PONSI);
(3) An evaluation of education by a reliable credentials evaluation service which specializes in evaluating foreign educational credentials;
(4) Evidence of certification or registration from a nationally-recognized professional association or society for the specialty that is known to grant certification or registration to persons in the occupational specialty who have achieved a certain level of competence in the specialty;
(5) A determination by the USCIS that the equivalent of the degree required by the specialty occupation has been acquired through a combination of education, specialized training, and/or work experience in areas related to the specialty and that the alien has achieved recognition of expertise in the specialty occupation as a result of such training and experience. For purposes of determining equivalency to a baccalaureate degree in the specialty, three years of specialized training and/or work experience must be demonstrated for each year of college-level training the alien lacks. For equivalence to an advanced (or Masters) degree, the alien must have a baccalaureate degree followed by at least five years of experience in the specialty. If required by a specialty, the alien must hold a Doctorate degree or its foreign equivalent. It must be clearly demonstrated that the alien’s training and/or work experience included the theoretical and practical application of specialized knowledge required by the specialty occupation; that the alien’s experience was gained while working with peers, supervisors, or subordinates who have a degree or its equivalent in the specialty occupation; and that the alien has recognition of expertise in the specialty evidenced by at least one type of documentation such as:
(i) Recognition of expertise in the specialty occupation by at least two recognized authorities in the same specialty occupation;
(ii) Membership in a recognized foreign or United States association or society in the specialty occupation;
(iii) Published material by or about the alien in professional publications, trade journals, books, or major newspapers;
(iv) Licensure or registration to practice the specialty occupation in a foreign country; or
(v) Achievements which a recognized authority has determined to be significant contributions to the field of the specialty occupation.
(E) Liability for transportation costs. The employer will be liable for the reasonable costs of return transportation of the alien abroad if the alien is dismissed from employment by the employer before the end of the period of authorized admission. If the beneficiary voluntarily terminates his or her employment prior to the expiration of the validity of the petition, the alien has not been dismissed. If the beneficiary believes that the employer has not complied with this provision, the beneficiary shall advise the Service Center which adjudicated the petition in writing. The complaint will be retained in the file relating to the petition. Within the context of this paragraph, the term “abroad” refers to the alien’s last place of foreign residence. This provision applies to any employer whose offer of employment became the basis for an alien obtaining or continuing H-1B status.
License from the U.S. government for a release of Controlled Technologies or Technical Data to foreign persons in the U.S.
The Export Administration Regulations (EAR) (15 CFR Parts 770-774) and the International Traffic in Arms Regulations (ITAR) (22 CFR Parts 120-130) require U.S. persons to seek and receive authorization from the U.S. Government before releasing to foreign persons in the United States controlled technology or technical data. Under both the EAR and the ITAR, release of controlled technology or technical data to foreign persons in the United States–even by an employer–is deemed to be an export to that person’s country or countries of nationality. One implication of this rule is that a U.S. company must seek and receive a license from the U.S. Government before it releases controlled technology or technical data to its nonimmigrant workers employed as H-1B, H-1B1, L-1, or O-1A beneficiaries. The U.S. Government requires each company or other entity that files a Form I-129 to certify that to the best of its knowledge at the time of filing it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and determined whether it will require a U.S. Government export license to release controlled technology or technical data to the beneficiary. This process will take at least 30 to 45 days.
If an export license is required, the company or other entity must further certify that it will not release or otherwise provide access to controlled technology or technical data to the beneficiary until it has received the required authorization from the U.S. Government.
The technology and technical data that are, however, controlled for release to foreign persons are identified on the EAR’s Commerce Control List (CCL) and the ITAR’s U.S. Munitions List (USML). Learn more at International Traffic in Arms and the Commerce Control list regulations
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If you or your employer want to learn more about this topic or H-1B petition in general or about our legal services for the preparation and the filing H-1B petition do contact us at (+1) 202 600 7743, or email us at info@adhikarilaw.com