H-1B visas are available to qualifying foreign workers who will perform temporary services in a "specialty occupation". An initial H-1B petition may be valid for up to 3 years. Extensions of an additional 3 years are also allowed. Extensions beyond 6 years will be permitted if the H-1B visa holder is applying for permanent residence and is the beneficiary of a labor certification or an immigrant petition that has been pending for over 1 year. H-1B employees who have reached their limit must leave the United States for at least 1 year before they are eligible to obtain H-1B classification again.
A specialty occupation is defined as one which "requires theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation and which requires the attainment of a bachelor's degree or higher in a specific specialty as a minimum for entry into the occupation in the United States." This definition therefore requires that: (1) employers demonstrate that they have a need for a worker in a specialty occupation and that the position, at a minimum, actually requires such a worker; and (2) that the foreign worker have the necessary educational and/or background experience in the specialty occupation.
An employer can demonstrate the need for a person in a specialty occupation by showing one of the following:
- The employer normally requires applicants
to have a bachelor's degree (or a a higher degree) in order to work
in the particular position;
- The requirement of having such a
degree is common in the employer's industry in such positions, or the
job duties can only be performed by someone who has such a degree because
it is complex or unique;
- The employer normally requires that
employee's working in the particular position have the degree;
- The nature of the duties required by the position are so specialized and complex that the knowledge required to perform the duties is usually obtained through a bachelors or higher level of education.
In order to obtain H-1B classification for a prospective employee, an employer is required to obtain a "certified" Labor Condition Application ("LCA") by the U.S. Department of Labor in the region where the employee will work. In the LCA, the employer must state that they will pay the appropriate wage rate to the foreign employee; that there is no strike or lockout at the place of employment; and, if the job is unionized, the employer must also give notice of the LCA to the relevant bargaining representative - otherwise the employer must post a notice in a conspicuous location at the job site so that other employees can see it. Although the LCA form is a federal form (and are therefore the same all over U.S.), the certified LCA is only valid in the region where it is certified and for the job location it is certified. The employer must also keep certain records and is required to pay certain costs and expenses on behalf of an H1B employee, including a $1,000 fee which is paid at the time the application is filed with the INS.
H-1B employees may travel out of the country as long as they continue to work for the H-1B employer when they return. In order to work for a different employer, H-1B employees must have the new employer's H-1B petition approved through the INS since each petition is specific to the employer. H-1B employees may also simultaneously hold more than one H visa - and thus have more than one employer, either of which may be part-time in nature.
H-1B Employer Responsibilities for H-1B Employee Termination, Layoff or Reduction of Hours
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