H-1b Specialty Occupation: an Important Visa Option for U.s. Employers
An H-1B temporary worker is a foreign national who is coming temporarily to the U.S. to perform a specialty occupation. A specialty occupation is defined as "an occupation that requires (A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor's or higher degree in the specific specialty as a minimum for entry into the occupation in the United States." [INA214(i); 8USC 1184(i)]
For example accountants, architects, teachers (primary and secondary, excluding nursery school teachers), university professors, certain types of nurses, attorneys, physicians, designers, and engineers will all qualify as H-1B workers. The only way to make a determination whether a particular worker will qualify is through advice from an experienced immigration attorney.
The H-1B visa remains one of most versatile nonimmigrant employment visas utilized by U.S. businesses to hire foreign workers. Here is a list of issues to keep in mind when filing an H-1B petition.
Limitation on Duration of Stay and Full-Time/Part-Time Employment
An employer may request initial employment a maximum of 3 years. The H-1B can be extended. Generally, the maximum amount of time that an individual can hold H-1B visa status is 6 years. However, exceptions do exist that allow an H-1B extension beyond the initial 6 years. An employer may petition for a foreign worker for either full-time or part-time employment.
Prevailing Wage
The prevailing wage element requires employers to demonstrate that the wage offered will not discriminate against US workers by offering wages that are lower than the actual wage paid similar workers. Generally prevailing wage requirement is met by offering wages as determined submitting a Prevailing Wage Request to the State Workforce or demonstrating that a union contract is in force. The H-1B laws require employers to pay the higher of the actual wage or the prevailing wage.
The Labor Condition Application (LCA)
The LCA is an application by the employer to the Department of Labor attesting to certain conditions of the position offered. These conditions are:
That the higher of actual or prevailing wage will be paid;
That the employee is eligible for the same benefits as other similarly employed US workers;
That the employee is not being employed because US workers are out on strike or lockout;
That the employment of the foreign worker will not adversely affect the working conditions of other workers; and
That proper notification was given to U.S. employees or the union representative if the position is union position university's intent to hire an H-1B non-immigrant.
The LCA must be made available for Department of Labor (DOL) and for public inspection. The LCA may be obtained online at www.lca.doleta.gov.
Spouse or Children of an H-1B
Spouses and children of an H-1B are eligible for H-4 visas. An H-4 is either a spouse or unmarried children under 21 years old. H-4 holders cannot work in the U.S. but are eligible to attend school either part time or full-time. To prove the relationship to the H-1B an H-4 candidate will need to present a marriage certificate if a spouse and a birth certificate if a child.
Ok, when do I file?
The United States Citizenship and Immigration Service (USCIS) will accept H-1B petitions for fiscal year 2010 on April 1, 2009 for jobs starting on October 1, 2009. It is important to file April 1, 2009 since H-1B visas are capped at 65,000 per year and the last two years the cap was met within one week. As such, early document preparation is essential to making timely filed H-1B petitions.
I'm Ready to File a Where?
A petition is filed with either California Service Center or Vermont Service Center depending on where the temporary employment will be The California Service Center is appropriate for employment in the following states: Arkansas, Arizona, California, Colorado, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin, or Wyoming.
A petition is filed with the Vermont Service Center if the temporary work will be performed in: Alabama, Arkansas, Connecticut, Delaware, the District of Columbia, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, U.S. Virgin Islands, or West Virginia.
When the temporary employment will be in different states, the state where your company is located will determine the Service Center for submission of the petition. For example, if the beneficiary will work in Arizona and Texas, and your company is located in California, file your H-1B petition with the California Service Center.
Sounds Great a How Much is this Going to Set me Back?
As of the time this article is published, an employer must pay for the H-1B Form I-129 filing fee ($320), H-1B Training Fee of either $750 or $1500 depending on the size of your company, and a Fraud Prevention and Detection Fee ($500). All employers must pay these fees unless an employer qualifies for exemption from the H-1B Training Fee.
If a company currently employs 1-25 full-time equivalent employees, the H-1B Training Fee is $750. Companies who employ more than 25 full-time equivalent employees will need to pay $1500. The employer must pay the H-1B Training Fee upon the initial hire and the first H-1B extension of the same employee. The H-1B Training Fee is not required for second or subsequent petitions for H-1B extension. The Fraud Prevention and Detection fee needs to be paid when the employer initially hires the employee even if he or she is currently working as an H-1B with another employer.
A simple way to remember this is that every employer needs to pay for the H-1B Training Fee twice for each H-1B employee and the H-1B Fraud Prevention and Detection Fee needs to be paid once for each H-1B employee. Fees are subject to change so it is important to make sure of the proper fees before filing.
Filing Procedure
Documents are filed with the USCIS service center having jurisdiction over the petitioner (see filing locations above). The petitioner must send Form I-129, I-129 supplement forms, an approved Labor Condition Application, support document about the petitioner's business, and documents showing the qualifications of the candidate. If there are dependent/s then the form I-539 need to be filed along with proof of relationship to the H-1B, i.e. marriage certificate or birth certificate or both. Only one I-539 is required to be filed as children are listed on the application. The Form I-539 filing fee is $300.
