Curran & Berger

An H-1B nonimmigrant visa is a temporary visa for professional workers in specialty occupations that normally require a bachelor’s degree or equivalent as a minimum requirement.  Typical examples of H-1B eligible professionals are computer programmers, engineers, teachers, scientists, and lawyers. The H-1B visa is valid for three years and can be renewed for an additional three years.

Defining a Specialty Occupation 

“Specialty occupation” is defined as “an occupation that requires (a) theoretical and practical application of a body of highly specialized knowledge, and (b) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States”.

To establish that a job qualifies as a specialty occupation under USCIS regulations, one or more of the following criteria must be met:

• A bachelor’s or higher degree or its equivalent that is normally the minimum entry requirement for the position; The required degree must be related to the position to be filled.
• The degree requirement is common to the industry or, in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree;
• The employer normally requires a degree or its equivalent for the position; or
• The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

If the applicant does not possess a bachelor’s or higher degree, he or she may qualify based on experience that is equivalent to the bachelor’s degree.  The beneficiary must demonstrate recognition of his or her expertise gained through “progressively responsible positions relating to the specialty”.  Documentation of recognition could include letters from previous employers, peers and special honors recognition, or authorship of textbooks. With the “three-for-one” rule, three years of specialized training and/or work experience may be substituted for each year of college-level education that the beneficiary lacks.

The Required Forms

In order to file an H-1B application, an employer must submit the following forms to the USCIS

• Form I-129
• Form I-129 H
• Form I-129 H-1B Data Collection Supplement
• The Labor Condition Application (described below)
• Evidence of the specialty occupation and the applicant’s eligibility

The Labor Condition Application

If the job itself qualifies as a “specialty occupation” and the applicant is sufficiently qualified, a potential employer may petition for the H-1B on behalf of the foreign national.  The Department of Labor requires the filing of a "Labor Condition Application" (LCA) before the petition may be filed. Basically, the rules require the employer to "attest" that the worker will be paid the higher of the actual or prevailing wages, and will not adversely affect other workers. 

The LCA, Form ETA-9035, is required for an H-1B petition approval.  The LCA contains basic information about the proposed H-1B employment such as rate of pay, period of employment, and work location, which must be saved by the employer in a public access file.  The LCA must be certified by DOL before the H-1B petition may be approved by USCIS.

By signing and filing the LCA, an employer makes four attestations or promises.  The employer attests:

• It is paying the higher of:

-the “actual wages” paid to others with similar experience and qualifications; or

-the “prevailing wage” for the occupational classification

• It will provide working conditions for the H-1B employee that will not adversely affect the working conditions of workers similarly employed in the area.
• There is no strike or labor dispute at the place of employment.
• It has:

-provided notice of this filing to the bargaining representative (if any); or

-if there is no such bargaining representative; it has posted notice of filing in at least two conspicuous locations for a period of 10 days.

Spouses and dependent children may obtain H-4 visas as the dependents of the primary applicant for an H-1B visa by filing an I-539 form and providing other documentation.   H-4s may study but not work without obtaining a separate work visa.

If our office will be assisting you with an H-1B petition, please complete the following checklists and return them, along with the requested documents, to our office: 

H-1B Employee Checklist

H-1B Employer Checklist