Overview : H1B Visas for Temporary Professional Workers
Posted Sep 15, 2003

This article continues our overviews of U.S. immigration law with the nonimmigrant (temporary) visa categories, the "H1B" classification for temporary workers in "specialty occupations."

Specialty Occupation

The H1B status is for foreign workers who will hold specialty occupations. A specialty occupation is one which "requires theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation AND which requires the attainment of a bachelor's degree or higher in a specific specialty as a minimum for entry into the occupation in the United States."

Thus, there are two requirements: First, the employer must demonstrate a need for someone in a specialty occupation as the minimum capability to perform the job; and second, the foreign national must have the required degree, or its equivalent, in a subject closely related to the position.

Under the regulations, the need for a person in a specialty occupation can be shown by one of the following:

a) a bachelor's or higher degree is normally the minimum requirement for entry into the particular position;

b) the degree requirement is common in the industry in parallel positions among similar organizations, or the position is so complex or unique that it can be performed only by an individual with a degree;

c) the employer normally requires the degree for the position; or

d) the nature of the duties are so specialized and complex that knowledge required to perform them is usually obtained through a bachelors level or higher education.

Employer's Responsibilities

The employer must first file a "labor condition application" (LCA) with the U.S. Department of Labor in the region where the foreign national will work. The employer must attest to certain wage and working conditions. A list of the attestations on the LCA is provided in the above article entitled "Update on the new LCA form for H1Bs" since a new form for the LCA will be used from January 19, 2001 onwards. We will also describe those requirements, including the complex "prevailing wage" issue, in more detail in a subsequent overview article.

The employer must give notice of the LCA to the relevant collective bargaining unit, if the job is unionized, or otherwise post a notice in a conspicuous location to enable other employees to see it.

The employer must pay certain costs and expenses on behalf of an H1B employee. The employer must also keep certain records. Further details on the above requirements will be included in subsequent overview articles.

Basic Outline of the Process

The first step in H1B cases is to locate “prevailing wage” information for the area in which the employment is to be located. It is possible to have the state issue a prevailing wage determination or, if there is a reputable and reliable published survey that would meet the labor department requirements, to use that instead. The prevailing wage data as well as other basic information is then entered on the LCA form that is submitted to the Department of Labor.

The next step is to submit to the INS a form, along with the LCA, and a letter describing the operations of the company, the job opening, and the prospective employee's background. It is also necessary to document the beneficiary’s degree and to show that the company is viable. A person who is already in H1B status may accept new employment and start working for the new employer immediately upon filing the new H1B petition if the person has: (a) been previously granted H1B status, (b) been lawfully admitted into the US; (c) filed a non-frivolous H1B or other non-immigrant petition which is pending for new employment; and (d) never been employed without authorization in the U.S. before the filing of the H1B petition. Depending upon the location of the employment, it can take 1 to 6 months for the INS to approve the petition.

At MurthyDotCom we regularly post the processing times released by the INS Service Centers, after that information is provided to the American Immigration Lawyers Association. The processing times vary depending on the caseload of the Service Center; these times are generalizations.

If the person is already in the country in some other valid legal status, then his or her status would usually be changed to H1B status with the H1B Petition approval, assuming the correct box was marked on the Form I-129 submitted to the INS. This also holds true for a person who has an H1B through another employer. Under AC21, a person who is working with another employer in H1B status is now allowed to work with a new employer upon filing the H1B Petition with the INS. This is a reversal of previous INS regulations. If the H1B applicant is in the foreign country, then it is necessary for him or her to go to the U.S. consulate and apply for an H1B visa at the U.S. consulate in that country based upon INS approval of the H1B Petition.

In future H1B overview articles, we will go into more detail about prevailing wage issues, employer record-keeping requirements, and other H1B issues.