H-1B Specialty occupation

    Overview

    Probably the most common employment visa in the country. These visas are for those employees that work for a business in the United States in an occupation that normally requires a bachelor’s degree or higher in a related field of study (e.g., engineers, scientists or mathematicians). The employee must have at least a bachelor’s degree or equivalent in a field related to the position. H-1B Visa Applications are subject to a strict Cap of 65,000, with an additional 20,000 set aside for those with Master's degrees or higher.  The USCIS begins accepting applications on April 1 of every year. Read on for overviews of the Labor Conditions Application, H-1B Extensions, and H-1B Portability.

    Requirements

    • There is an employer-employee relationship between the petitioner and the beneficiary. Please note that this may be possible even if you own your company as long as the control of your work is vested in other people, such as a board of directors or other investors.

    • Your job must qualify as a "specialty occupation," meaning that the position requires someone with at least a bachelor's degree.

    • ​The specialty occupation must be related to your degree, and

    • ​You must be paid at least the actual or the prevailing wage for your occupation, whichever is higher.
    Labor Conditions Application

    The LCA must be filed by the petitioner to show that (1) at least the prevailing wage of the occupation for which the employee is being hired will be provided to the employee and (2) the working conditions provided to the employee is such that it will not adversely affect the working conditions of other workers that are similarly situated. 


    Because the LCA cannot be filed more than six months before the employment start date, complex issues arise for H-1B petitions  for a couple of reasons. First, as the H-1B effective date is always October 1 and you cannot file for LCA until April 1, but you have to submit the H-1B petition on April 1 to beat the quota, what do you do to juggle these dates? Second, it takes a while for the DOL to certify the LCA, would USCIS consider H-1B petitions without a certified LCA? And, what do you put as the start and end dates of the employment on the LCA if not October 1 and would that discrepancy between the LCA and the H-1B dates matter? 


    Only an immigration attorney can tell you the right course of action when faced with these issues. Although under certain circumstances, the USCIS has agreed to consider H-1 petitions submitted without certified LCAs, this is very risky because the USCIS will deny the H-1B petition if the LCA is finally denied. However, in these circumstances, the suggested practice is to  enter the start date for the employment on the LCA as at least a month earlier to file the LCA a month before the H-1B and to give the DOL time to certify. The end date of the employment can be exactly three years from the LCA start date. So for example, the term of the employment for the LCA can be from September 1 to August 31 (3 years later), and the term on the I-129 can be from October 1 to August 31 of the third year (during the 3 year term).

    H1B Extension
    ​H-1B extensions are available after the first 3 years, so that the employee can remain employed for the same employer for a total of six years. However, some exceptions may apply to extension the H-1B beyond the six-year term. Contact our law firm if you would like to consider your eligibility to extend your employee's H-1B beyond the 6-years. 
    Portability
    An employee who was previously issued a H-1B visa may accept new employment if the prospective employer files a new petition on behalf of the employee, prior to the expiration of the existing H-1B. This special provision in the INA for H-1B visa holders is called H-1B Portability. The new petition is subject to the same requirements as the existing H-1B visa, but it will not count against the quota. 

    What We Can Do For You:

    Because of the popularity of the H-1B petitions, it is imperative that an efficient immigration attorney is on your side helping you with the applications and the hiring process, getting the petition ready and sending it as soon as the USCIS begins accepting applications.  Historically, the 65,000 quota have been filled within the first week of April. 


    • Research the applicable occupations and obtain a Prevailing Wage Determination (PWD) from the various DOL sources. 

    • ​Complete Form 9035 and 9035E for the LCA at least a month before the USCIS begins accepting H-1B applications, giving the DOL a month to provide the certification. 

    • Complete and file I-129, and ensure that the end dates line up with the LCA.
     
    • File for Premium Processing, if you wish, which is, we think, a small cost for speeding up the process.

    • File for extension(s) after the 3  years.

    • File for Employment Authorization for the beneficiary's H-4 spouse, if eligible.
     
    • File for H-1B petition for a new employer if the employee chooses to work for a new employer.
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