Requirements for an H-1B Specialty Worker

H-1B specialty worker visa petitions are filed with Citizenship and Immigration Services (CIS) by U.S. employers seeking the temporary services of persons whose work requires a bachelor's or higher degree in a "specialty occupation." Acceptable positions include most jobs in computer science, architecture, engineering, the sciences, medicine and health, education, business management, accounting and law. H-1B status usually is granted for three years and extensions can be obtained for up to six years; in certain circumstances, additional one-year extensions are available to employees who are being sponsored for U.S. permanent residence. However, an employer can request an H-1B visa for less than three years, and employment may be part-time or intermittent.

Our office will prepare the necessary petition forms and other supporting documentation, including drafting letters for the employer’s approval. The basic information required for an H-1B petition includes the employer's IRS employer ID number, the total number of employees, the most recently reported net and gross annual income, a detailed description of the specialty worker's proposed job, and the specialty worker's salary and benefits. CIS requires approximately sixty to ninety days from the date a petition is filed to adjudicate an H-1B petition. Employers may elect to pay an additional $1,000.00 filing fee to CIS for “premium processing” which guarantees that a senior CIS examiner will review the application within 15 days.

Persons in the United States who have always worked with authorization from CIS and who have not otherwise violated their current immigration status can change their visa classification to H-1B in the United States. Persons who have violated the terms of their current immigration status and persons outside the United States must secure their H-1B visa abroad at a U.S. Consulate. Severe penalties may attach, including the applicant’s inability to return to the U.S. for three years, if the applicant has overstayed their visa for more than 180 days.

Prior to filing the application with CIS, the employer must meet specific requirements which often take two weeks or longer to satisfy. These include:

1. The filing of a Labor Condition Application (LCA) with the Department of Labor, certifying that the employee will be paid the higher of two wage levels: the "prevailing wage" which is determined by the local State Employment Security Agency (SESA) and the "actual wage" which is determined by comparison to the salaries of the employer's other works. We obtain the "prevailing wage" determinations through the local State Employment Security Agency (SESA) or through independent sources. In some cases, it is advisable for the employer to obtain a "blanket LCA" to cover a larger number of workers in advance.
   
2. The posting of the LCA in two conspicuous places where the services are to be performed, so that U.S. workers may know that you intend to file an H-1B petition on behalf of a specialty worker. Penalties, including back pay, are provided in the event an employer makes a misrepresentation of fact on an LCA.
   
3. The agreement of the employer to pay for the specialty worker's "return transportation abroad" in the event the specialty worker is terminated before the expiration of his or her visa status. Although CIS has indicated little interest in enforcing this provision, it is part of the law.
   
4. The maintenance of a “public access” file containing the LCA and prevailing wage/actual wage documentation. We will provide the employer with those materials and instructions on retaining them.

Our firm will first prepare drafts of all required forms and documents for the employer's review, revision, and approval. Once the employer has signed off on the finalized documents, we will file them with DOL and CIS and follow up to ensure prompt adjudication.

Once CIS approves the H-1B petition, most employee-beneficiaries are then authorized to work. Some H-1B beneficiaries, however, must obtain an H-1B stamp at a U.S. Consulate before they are authorized to work. Moreover, all must obtain an H-1B visa stamp if they travel abroad in order to re-enter the country to resume their employment.

Our office will advise the employer and the applicant, including family members, throughout the period that the H-1B visa is in effect.

Changes in Employment

"The American Competitiveness in the Twenty-first Century Act of 2000" (AC21) creates "H-1B portability." In the past, H-1B employees who sought to change employers were required to wait until the new employer’s petition was approved before they could begin the new job. Under the new law, H-1B employees are able to begin work once the new employer files the new petition. To qualify, the employee must currently be in lawful H-1B status.

The Department of Labor (DOL) has issued rules to implement provisions of the “American Competitiveness and Workforce Improvement Act of 1998” (ACWIA). ACWIA made significant changes to the H-1B program, including increasing the maximum number of H-1B visas available; imposing additional attestation requirements for “H-1B dependent” employers (employers whose full-time-equivalent workforce consists of at least 15% H-1B workers), and employers who have previously violated the terms of the H-1B program. Additional H-1B worker protection provisions under ACWIA cover whistleblowers; prohibitions against requiring employee reimbursement of certain fees and expenses (including fees levied against H-1B employees who terminate employment before expiration of their H-1B status, and, in certain circumstances, attorney fees); and requirements that employers pay H-1B workers during unproductive time not occasioned by the workers themselves. Furthermore, under the new rules, employers are required to offer H-1B workers the same fringe benefits, in accordance with the same criteria, as are offered to their U.S. workers. Finally, the new rules created investigative procedures that can be triggered by information gained from sources other than aggrieved parties.

Both CIS and DOL have indicated that further interpretations of these new laws and rules are forthcoming. Our office will continue to advise you throughout the period that the H-1B visa is in effect.