H-1B visa is a special type of worker’s visa reserved for individuals who will fulfill a “specialty occupation” and allows foreign nationals to work legally in the US for a period of time.
H-1B Cap and Competitiveness
It is important to remember that H-1B visas are “capped” each year meaning, only a certain amount are awarded each year. In recent years, the amount of H-1B applicants has greatly increased, making the H-1B process extremely competitive.
Why you should hire an H-1B Attorney
If you are interested in pursuing an H-1B visa, it is in your best interests to work with an experienced H-1B lawyer. A qualified H-1B attorney can ensure that your application is error-free and that proper filing procedures are followed, giving you the best result possible.
If you want to apply for an H-1B visa, contact Tucker, Nong and Associates immediately. Our experienced H-1B visa attorneys know exactly how to manage your case so that you can file as quickly as possible and not be penalized for any errors.
Requirements for H-1B Status and Visa
There are many things that are required in order to obtain an H-1B visa. Some of these requirements will involve the employee’s specialty and the type of work involved, and others will involve information regarding the employer.
Specialty Occupation Requirements for Employees
The term “specialty occupation” refers to a position that either requires a bachelor’s degree in a specific field or a position that requires the equivalent knowledge and experience that a bachelor’s degree would provide. In order to be eligible for an H-1B status, the position in question must fit this criteria. If the job involves graduate work and the city or state requires a specific license or certification, the applicant will also need to obtain this before H-1B status will be granted.
Once the position has been proven to meet the specialty occupation status, it will need to be shown that the alien seeking the H-1B status is capable of fulfilling those requirements. Proof of a bachelor’s degree from an accredited U.S. institution must be given, or proof that the same level of education has been received at a foreign establishments must be shown. If the applicant does not have a bachelor’s degree, it must be shown that he has received specialty training needed to fulfill all job requirements.
Specialty Occupation Requirements for Employers
The potential employer of the applicant must fulfill certain requirements as well:
- It must be shown that the employer is running a legitimate business and has a U.S. tax identification number. This can include everything from a corporation to an private organization.
- The potential employer must show that the alien in question is entering into the company as an employee and not as a contractor or part of a mutual agreement. Basically, this means that the employer has control over the work of the employee in addition to having the power to oversee and even fire that person.
- Before the H-1B application is filed, the Department of Labor (DOL) and the United States Citizenship & Immigration Service (USCIS) require that the employer file a Labor Condition Application. This paperwork will include information such as the future of the job, the salary, the hours, general statistics about the company and the occupation, etc.
Requirements for Labor Condition Application
The LCA requirements will need to be filled by the employer. First, the employer must validate that the employee will be making the same wage as other employees of equal status both within the same company and in the same region. Second, it must be shown that hiring this alien will not harm the working conditions of the current employees. And third, the employer must prove that there is no lock-out or strike occurring at the time. If the employer does not meet any of these requirements or the DOL deems their evidence insufficient, an investigation may be opened. For this reason, it is wise for any company to keep all documents that could potentially be used for this type of application and situation, even if it does not seem necessary at the time.
Even if the H-1B status alien already has all the required paperwork with one company, switching companies will require all of the same procedures to be followed again. The LCA certification must be filed according to the location in which the applicant will be working, regardless of whether or not the company is headquartered there. If the employee will be working in multiple locations, this must be indicated on the LCA. Re-certification may also be required once the time period specified on the original LCA has expired. Although there are exceptions (such as the Chile/Singapore programs), this is usually required at least every 3 years.
There are many companies, especially those involved in computer programming and other technological occupations, that outsource their employees to third-party locations for a specified job or period of time. In this case, the employer will need to fulfill some special requirements in order for the H-1B status to be approved. Copies of each third-party agreement will need to be filed with the USCIS to show that the employer listed on the LCA is still the controlling employer of the H-1B alien. If these forms are not filed, action may be taken and H-1B status may be delayed or terminated.
As an employer, it is important that you wait for confirmation from the USCIS before allowing the H-1B alien to begin working for your company.
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