An H-1B nonimmigrant visa is a temporary visa for professional workers in specialty occupations that normally require a bachelor’s degree or equivalent as a minimum requirement..
DEFINING 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 (or its equivalent) as a minimum for entry into the occupation in the United States.”
To establish that a job qualifies as a specialty occupation under USCIS regulations, one or more of the following criteria must be met:
- A bachelor’s or higher degree or its equivalent that is normally the minimum entry requirement for the position; the required degree must be related to the position to be filled.
- The degree requirement is common to the industry, or in the alternative, the position 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; or
- 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.
If the applicant does not possess a bachelor’s or higher degree, he or she may qualify for an H-1B visa based on experience that is equivalent to a bachelor’s degree. The beneficiary must demonstrate recognition of his or her expertise gained through “progressively responsible positions relating to the specialty”. Documentation of recognition could include letters from previous employers, peers and special honors recognition, or authorship of textbooks. With the “three-for-one” rule, three years of specialized training and/or work experience may be substituted for each year of college-level education that the beneficiary lacks.
Immigration processing in general has become much more challenging. USCIS is reviewing petitions in much more detail, and the “specialty occupation” requirement is a growing hurdle to getting an H-1B.
As a result of a line of court cases starting in 2009, meeting one of the above requirements is now only the first step in proving a specialty occupation. In other words, once we show that one of the criterion is met, we don’t automatically win the case. USCIS conducts an additional analysis with higher and more subjective standards.
Similarly, the definition of “related field” is becoming more narrow. For example, a “financial manager” might be hired based on a degree in finance, accounting, economics, or business administration. That might still work. But in 2009, a court found that “budget analysts was not a specialty occupation because DOL resources state that the degree could be “in one of many areas, including accounting, finance, business, public administration, economics, statistics, political science, or sociology.”
It has been particularly problematic for college coach positions, entry level positions, non-profit organizations, and college administration positions to meet the specialty occupation requirement, some of the start-up companies because they often accept a variety of degrees and involve a variety of duties. Even if a position has previously been approved for an H-1B, USCIS officers are looking much more carefully at specialty occupations and scrutinizing cases that have been approved before.
If you are considering an H-1B petition for a job that does not have a very simple link to a particular degree, talk to me to brainstorm the case. It may be that another visa option is better, or that extra work will be needed to document that the job qualifies as a specialty occupation.
THE REQUIRED FORMS
In order to file an H-1B application for an employee, the employer must submit the following forms to USCIS:
- Form I-129
- Form I-129 H
- Form I-129 H-1B Data Collection Supplement
- The Labor Condition Application (described below)
- Evidence of the specialty occupation and the applicant’s eligibility.
- Form I-907, Request for Premium Processing Service (optional)
If the job itself qualifies as a “specialty occupation” and the applicant is sufficiently qualified, a potential employer may petition for the H-1B on behalf of the foreign national. The Department of Labor requires the filing of a “Labor Condition Application” (LCA) before the petition may be filed. Basically, the rules require the employer to “attest” that the worker will be paid the higher of the actual or prevailing wages, and will not adversely affect other workers.
The LCA, Form ETA-903, is required for an H-1B petition approval. The LCA contains basic information about the proposed H-1B employment such as rate of pay, period of employment, and work location, which must be saved by the employer in a public access file. The LCA must be certified by the Department of Labor before the H-1B petition can be approved by USCIS.
By signing and filing the LCA, an employer makes four attestations or promises. The employer attests:
- It is paying the higher of: the “actual wages” paid to others with similar experience and qualifications, or the “prevailing wage” for the occupational classification.
- It will provide working conditions for the H-1B employee that will not adversely affect the working conditions of workers similarly employed in the area.
- There is no strike or labor dispute at the place of employment.
- It has provided notice of this filing to the bargaining representative (if any); or if there is no such bargaining representative, it has posted notice of filing in at least two conspicuous locations for a period of 10 days.
The Department of Labor (DOL) regulations at 20 CFR 655.731(c) describe the wage requirement for H-1B and Labor Certification purposes. Payment of less than the higher of the actual or prevailing wage is a violation of the LCA.
If you have any question regarding this visa petition, please call the office to set up a valuable consultation.