Occasionally at InTANDEM HR we receive an inquiry about H-1B visas.
The H-1B visa provisions authorize the employment of select qualified individuals who are not otherwise authorized to work in the United States. The intent of this program is to help employers that cannot otherwise obtain needed business skills and abilities from the U.S. workforce for certain “specialty occupations”. Specialty occupation as defined by the U.S. Citizen and Immigration Services (USCIS) is one that requires the application of a body of specialized knowledge and a bachelor’s degree or the equivalent in the specific specialty (e.g., sciences, medicine, health care, education, biotechnology, business specialties).
Current laws limit the annual number of qualifying foreign workers who may be issued a visa or otherwise be provided H-1B status to 65,000, with an additional 20,000 under the H-1B advanced degree exemption.
The job qualifications must meet one of the following criteria to qualify as a specialty occupation:
- Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position.
- The degree requirement for the job is common to the industry, or the job is so complex or unique that it can be performed only by an individual with a degree.
- The employer normally requires a degree or its equivalent for the position.
- 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.
When recruiting for such a position, employers must ensure their applicants meet one of the following criteria:
- Have a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university.
- Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation.
- Hold an unrestricted state license, registration or certification that authorizes them to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment.
- Have education, training or progressively responsible experience in the specialty that is equivalent to the completion of such a degree and recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
The H-1B employer must pay its H-1B workers at least the “required” wage – the higher of the prevailing wage or the employer’s actual wage for similarly employed workers. This wage rate must be reported on the labor condition application (LCA) to the U.S. Department of Labor (DOL).
Notice must be given to U.S. workers on or within 30 days before the date the employer files the LCA with the DOL. Required information includes:
- The number of H-1B nonimmigrants the employer seeks to employ.
- The occupational classifications in which the H-1B nonimmigrants will be employed.
- The period of employment.
- Location they will be employed.
- Mandatory complaint statement.
The employer must apply for and receive DOL certification of an LCA no more than six months before the initial date of intended employment.
Various fees are associated with filing Form I-129, some of which apply only to certain employers.