The H-1B visa is a nonimmigrant visa designed to allow U.S. employers to recruit and employ foreign professionals in specialty occupations to work in the U.S. for a limited amount of time. To qualify for an H-1B visa, both the sponsoring employer and prospective alien employee must meet specific requirements, as stipulated by U.S. Citizenship and Immigration Services (USCIS) regulations and U.S. Department of Labor (DOL) requisites associated with obtaining a Labor Condition Application (LCA).
We break down the H-1B requirements below.
The Nature of the Job Position
First, the U.S. employer must show that the future alien worker will assume a “specialty” occupation position. A job will qualify as a specialty occupation if it meets one of the following definitions:
-The most notable exception to this condition involves fashion models, whose profession does not require an undergraduate degree but who are nonetheless eligible H-1B beneficiaries.
Normally, the job may not explicitly require a bachelor's degree, but in practice, it is so complex that really only an individual with a degree could perform the occupation satisfactorily.
The job entails specific duties that are so specialized or complex that the requisite background knowledge is usually associated with the attainment of a bachelor’s degree or higher.
-“Professional” jobs include, for example: architects, engineers, professors, teachers, researchers, medical professionals, dietitians, physicians, nurses, computer programmers, accountants, attorneys, social workers, economists, and librarians.
The Prospective Employee’s Educational Background
Going hand in hand with the nature of the job position is the educational background expected of the alien worker. Ultimately, sponsoring U.S. employers must show that their beneficiaries meet the educational requirements of the specialty occupation. As a general rule, alien workers should possess a four-year degree or higher from an accredited college or university, and said degree must be a prerequisite to entering the specialty occupation.
In many cases, alien workers completed their education abroad, acquiring a degree from a foreign institution. Such degrees need to be evaluated on an individual basis to ascertain whether or not they’re the equivalent of a four-year degree from a U.S. institution.
When a prospective foreign employee satisfies the basic four-year degree requirement, work experience is not needed. If an alien doesn’t meet the educational requirements, however, then work experience or training would be necessary. In some cases, work experience or training can be substituted for education, with three years of professional experience generally considered the equivalent of one year of college education. (For additional information on this subject, refer to our article here.)
Let’s consider the educational background requirement in the context of a real-world example.
Ayesha Camage, an Eritrean national, has been working as a network analyst for the past six years. Her only educational credential is an associate’s degree, which amounted to two years of college education. She has her hopes set on obtaining H-1B status so that she can relocate to Silicon Valley and work in the U.S. as an experienced network analyst.
Would Ayesha’s educational background qualify her as an H-1B beneficiary?
Yes, Ayesha has met the minimum educational requirement of a four-year degree. Her six years of experience is the rough equivalent of two years of college education. Accordingly, combined with her two-year degree, Ayesha does possess the requisite four years of college education, and she is eligible to be an H-1B beneficiary.
When the job position requires a license or board certification in order to practice, as required by law for such professionals as accountants, attorneys, dentists, doctors, and registered nurses, then the alien worker must hold the appropriate license, too.
If the job position and alien worker in question satisfy the above requirements, the employer subsequently files an LCA via ETA Form 9035 & 9035E with DOL.
To successfully complete this process, the employer must first prove that the H-1B visa worker will be paid, at a minimum, what is called the “prevailing wage” for the job in question. The prevailing wage is essentially the average rate of wages paid to workers similarly employed in the area of intended employment. The National Prevailing Wage Center (NPWC) determines prevailing wages by culling available data on the following job-related factors:
Let’s clarify what the prevailing wage is and the role it serves with three hypothetical case studies.
Case Study 1
Flora and Bora are both professors of biochemistry. The two women have the same educational experience, and the job positions they’re currently in have the same job descriptions. Flora is employed by a university in Bloomington, Indiana, while Bora works for a college in New York City.
Everything else being equal, due to the differences in the area of employment, i.e. location and cost of living at these locations, the prevailing wage for Bora will be higher than the prevailing wage for Flora, even though they’re in equivalent job capacities.
Case Study 2
Momo and Shaniqua are social science researchers. Both live in Seattle, and their jobs require the same level of education and work experience. The University of Washington hires Momo, while a private company employs Shaniqua.
Everything else being equal, since they are employed in different sectors (i.e. public vs. private), their prevailing wages will be different, with Momo’s prevailing wage lower than Shaniqua’s.
Case Study 3
Ariel and Ursula are marine biologists who both live in San Diego, and have similar education and work experience. Sebastian’s, Inc., a private company, employs both of them. Ariel is a research scientist, while Ursula is a postdoctoral researcher.
Everything else being equal, since Ariel occupies a more senior job position and her job description accordingly encompasses more duties, Ariel’s prevailing wage will be higher than Ursula’s.
After obtaining a prevailing wage, the employer must satisfy these six conditions:
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
Ensure that employment of the H-1B worker will not adversely affect the working conditions of U.S. workers similarly employed in the intended area of employment;
Ensure that there is no current strike or lockout involving workers in the prospective H-1B employee’s position at the workplace;
Provide a notice of filing the LCA to the collective bargaining representative of its employees working in the H-1B occupation or, lacking such a representative, conspicuously display this notice at the work site on the date the LCA is filed, or within 30 days before it is filed, for a posting period of 10 days;
Maintain for public examination the following documentation:
A copy of the LCA 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 determining the prevailing wage.
The employer must finally agree to pay the alien the reasonable cost of transportation to return to his or her home country if the employer terminates the alien’s employment prior to the end of the authorized employment period.
If DOL certifies a petitioning employer’s LCA, then said employer can proceed with filing a nonimmigrant petition with USCIS on behalf of its prospective alien employee. The nonimmigrant application is made via Form I-129.
Not Just Any “Employer”
As noted, the precursor to applying for an H-1B visa is an employer’s making a job offer and expressing its intention to fill said job position with an alien employee. Generally, individuals cannot by themselves apply for an H-1B visa. Rather, a U.S. employer is the petitioner, and the alien employee the beneficiary.
A U.S. employer is a person, firm, corporation, contractor, or other association or organization in the United States with a tax identification number provided by the Internal Revenue Service, or IRS. The tax ID number is more specifically known as a Federal Employer Identification Number (FEIN).
A petitioning U.S. employer must additionally demonstrate a bona fide employer-employee relationship, which is indicated by the scope of the employer’s activities over its employees, i.e. the employer may hire, fire, pay, supervise, or otherwise control the work of its employees.
Sponsoring U.S. employers are required to fulfill two fundamental requirements:
-Consider this example: Rihanna, a venture capitalist with multiple businesses, intends to hire a computer programmer for her newest start-up company. She proposes paying an alien worker an annual salary of $50,000. However, at the time of filing the requisite LCA, Rihanna has only $4.20 in her company’s bank account. Under this circumstance, Rihanna fails the ability-to-pay test.
-Alternatively stated, there must be a real business need for the position to be filled by an alien worker.
In August 2011, USCIS announced a slate of policies intended to stimulate the U.S. economy and investment by attracting foreign entrepreneurs who could create jobs, establish new companies, and invest capital in areas of high unemployment. In the context of this initiative, USCIS clarified that a nonimmigrant alien who is the owner of a petitioning company created in the U.S. may establish a valid employer-employee relationship for the purposes of sponsoring an H-1B visa.
While not all alien-owned companies can establish an employer-employee relationship, it is nevertheless possible to do so. First, there must be a degree of separation between the alien as an employer and his or her company. Second, the alien cannot be self-employed in the traditional sense and simultaneously be the beneficiary of an H-1B petition sponsored by his or her own company. For an alien to be the H-1B beneficiary of a petition sponsored by his or her own company, there must be an independent entity that can exercise hiring, paying, supervising, and firing authority outside of the alien-owner’s command. (For more information on this subject, refer to our article here.)
The H-1B Cap
The number of H-1B visas issued annually is subject to a statutorily defined maximum. Congress has set the quota at 65,000 visas, counted between October 1 of one year and September 30 of the next (i.e. by fiscal years). An additional 20,000 H-1B visas annually are reserved for beneficiaries with at least a master’s degree from a U.S. university.
Of the capped 65,000 total, 6,800 H-1B visas are specifically authorized for beneficiaries from Chile and Singapore under free trade agreements between the U.S. and these countries. If any of these visas go unused in any given fiscal year, then the remaining number will go back to the general applicant pool.
Special Issue: H-1B Dependence and Violations
If a petitioning U.S. employer is an H-1B dependent employer, a willful violator, or a TARP or Federal Reserve Chapter 13 recipient, then the employer must fulfill additional requirements. In sum, these employers have to attest to the following three conditions that address the non-displacement and recruitment of U.S. workers:
Depending on the type of violation committed by an H-1B employer, civil penalties may be assessed ranging from $1,000 to $35,000 per violation. In addition, employers who commit certain violations may be prohibited from participating in the H-1B program or other immigrant programs for a minimum of one year, and up to three years, depending on the nature of the violation. For more information on this subject, refer to our article here.
Our experienced immigration attorneys are here to guide professionals through the complicated H-1B application process, and minimize any and all confusion or challenges. We understand how important an H-1B visa is to you, whether as the employer or the prospective employee. Our seasoned staff and years-long track record of success make Zhang & Associates the natural choice to facilitate your H-1B petitions.
For more detailed information on the H-1B category, including minimum requirements and USCIS policies, refer to the following links:
General H-1B Topics