What are the Requirements for H-1B Holders?


The U.S. employer must offer employment in a specialty occupation, either on a full or part time basis.

A specialty occupation requires theoretical and practical application of a body of specialized knowledge. Examples of specialty occupations include: engineers, nurses, professors, researchers, computer programmers and other professionals.

The educational requirement specifies that the alien possess at least a bachelor’s degree or its equivalent. If the applicant was awarded his/her degree from an institution not located in the U.S., that degree must be evaluated to determine if it is comparable to a U.S. awarded degree. If the alien possesses a bachelor’s degree or its equivalent, work experience is not required.

If an alien does not meet the educational requirements, experience or training may be substituted, whereby three years of professional experience is considered equivalent to one year of college education.

Example:.
Neil is from India and has been working as a network analyst more than 6 years.  He only has an associate’s degree with 2 years of college education, but wishes to apply for H-1B status so he can work in the United States in the same occupation.  The minimum educational requirement has been met because every 3 years of related work experience can substitute 1 year of college education and his 6 years of work experience can make up the 2 year shortage. Therefore he may apply for the H-1B visa.

Furthermore, if a license is required under state law to practice a specific specialty occupation, the alien must hold the appropriate license.

The employer must also pay the minimum prevailing wage, which is defined by DOL rules as the average rate of wages paid to workers similarly employed in the area of intended employment. The following factors determine one’s prevailing wage:

  • Job title;
  • Educational and work experience requirements;
  • Job description;
  • Job location; and
  • Type of employer, (i.e. academic, government or private.)

Example 1:
John and Ron are both professors of biochemistry who have the same educational experience and fulfill the same job description. John is employed by a university in New York City, while Ron works for a college in Houston, Texas. Everything else being equal, due to the differences in location and cost of living at these locations, the prevailing wage for John is higher than the prevailing wage for Ron.

Example 2:
Jen and Ryan are researchers in chemistry, both living in Seattle, Washington and their jobs require the same educational and work experience. The University of Washington hires Jen, while a private company employs Ryan. Since they are employed in different sectors (i.e. public v private sectors), their prevailing wages will be different and Jen’s prevailing wage is much lower than Ryan’s prevailing wage.

Example 3
Jen and Ryan are researchers in chemistry, both living in Washington D.C., and have similar educational and work experience. The same private company employs both of them, where Jen is the research scientist and Ryan is just a post-doctoral researcher.  Since Jen has a higher job title and her job description encompasses more, Jen’s prevailing wage will be higher than Ryan’s.

The employer must attest to the following six (6) conditions:

  • The employer will pay the H-1B employee the higher of:
    • The actual wage rate that it pays to all other individuals with similar experience and qualifications, or
    • The prevailing wage level for the occupation in the “area of intended employment”, which is defined as the Metropolitan Statistical Area (MSA) and the narrower Primary Metropolitan Statistical Area (PSMA).
  • Employment of the H-1B worker will not adversely affect the working conditions of workers similarly employed in the intended area of employment;
  • There is no current strike/lockout involving the prospective H-1B worker’s position at his/her workplace;
  • The employer will provide notice of filing of the labor condition application to the employee collective bargaining representative for the H-1B occupation or, lacking such a representative, will conspicuously post such notice at the work site on or within 30 days before the date the labor condition application is filed;
  • The employer will maintain for public examination:
    • A copy of the Labor Condition Application filed,
    • Documentation of the salary paid to the H-1B employee,
    • An explanation of how the actual wage was determined, and
    • Documentation of the basis used for the prevailing wage;
  • The employer must agree to pay the alien the reasonable cost of transportation to return to his or her home country if the employer terminates employment prior to the end of the authorized employment period.

Depending on the type of violation committed by the employer, civil money penalties may be assessed ranging from $1,000 to $35,000 per violation.  Furthermore, employers who commit certain violations may be prohibited from participating in the H-1B program or other immigrant programs for at least one year.  

There are two major requirements that the employer must fulfill;

  • The employer must have the ability to pay. For instance, John wants to hire a computer programmer for his start-up company. He promises to pay an alien worker $50,000 for a year of work; however he currently has only $800 in his company’s bank account. Under this circumstance, John fails the ability to pay test;
  • The job offer to the intended H-1B beneficiary should be a bona fide offer. In other words, there must be a real business need for the position to be filled by the alien worker.

Caveat: It is impossible to list all of the relevant information that a prospective H-1 petitioner/beneficiary needs to know. To see what specific requirements you need to satisfy, it is best to seek a professional opinion from an experienced immigration attorney.

For more information on H-1B Visa, please refer to the following topics: