Worker In A Specialty Occupation
Who qualifies for the H-1B status?
The H-1B visa is designed for employers recruiting temporary workers whose positions require at least a bachelor's degree in a specialty occupation. In order to qualify for the H-1B status, the following requirements must be met:
- The position must be in a specialty occupation. This is an occupation that requires the theoretical and practical application of highly specialized knowledge and requires a bachelor's or higher degree in the specific occupation. Some examples of specialty occupation fields which normally require bachelor's degrees include, but are not limited to, accounting, architecture, education, engineering, law, mathematics, medicine and health, physical sciences and social sciences.
- The employer must actually need the services of a member of the specialty occupation.
- The prospective H-1B employee must possess the credentials normally possessed by a
person in the specialty occupation. The employer must document that the prospective
H-1B employee possesses one of the following:
- A U.S. degree appropriate to the specialty occupation;
- A foreign degree equivalent to or higher than a U.S. degree (an equivalency evaluation from a U.S.-based expert is normally required in these cases, unless the prospective H-1B employee also has a U.S. degree in the field which would normally require the equivalent of a U.S. bachelor's degree as a prerequisite);
- An unrestricted state license, registration, or certificate allowing the prospective H-1B employee the full right to practice in the specialty occupation;
- Experience equivalent to a U.S. degree may be acceptable if the prospective H-1B employee has at least three years of work experience in the appropriate area for EVERY year of missing education - in other words, if a prospective H-1B employee has three years of university education in the right field AND three years of relevant work experience, the education experience will be met (since a U.S. bachelor's degree normally takes four years to complete).
- If a license is required by a state to practice in the specialty occupation, the prospective H-1B employee has the necessary license. In some cases, the prospective H-1B employee can be granted a shorter-term visa if he or she possesses a temporary license.
What agreements must the employer make in order to petition for the H-1B status?
- The employer must agree to pay the reasonable costs of return transportation to the H-1B employee's home country if the employee is dismissed FOR ANY REASON prior to the expiration of the H-1B petition period.
Before an employer may submit an H-1B petition to U.S. Citizenship and Immigration
Services (USCIS), the employer must file and receive certification of a Labor Condition
Application (LCA) with the U.S. Department of Labor.
What is the Labor Condition Application (LCA)?
The LCA contains four attestations:
The H-1B nonimmigrant will be paid at least the actual wage level paid by the
employer to all other individuals with similar experience and qualifications for the
specific employment in question OR the prevailing wage level for the occupation in
the area of employment, WHICHEVER IS HIGHER. The prevailing wage figure can normally
be obtained from one of several sources: a determination from the U.S. Department
of Labor, an independent authoritative source survey, or another legitimate source.
Department of Labor determinations are the most preferable since they provide the
employer with "safe harbor" - that is, the Department of Labor has indicated that
it normally will not challenge such wage findings. Stricter standards are usually
applied to other sources.
What is the Actual Wage?
- The Actual Wage is part of the Labor Condition Application certification. It is the wage paid to all other employees with similar experience and qualifications for the specific employment in question.
- To determine the actual wage, the employer must first identify all other employees who are performing the actual set of duties and who have the same responsibilities the prospective H-1B employee will have. Consideration should be given to the following factors:
- The length and type of work experience of other employees in the position to be occupied by the prospective H-1B employee, compared to the experience of the prospective H-1B employee;
- The similarity of job qualifications, educational background, and class rank;
- Job responsibilities and actual duties;
- Specialized knowledge in a specific area within the field
Other "legitimate business factors" justifying different compensation levels for the same job, such as professional distinction or international acclaim, are also acceptable considerations.
Once employees with substantially the same duties and responsibilities as the prospective H-1B employee have been identified, their compensation levels must be examined in order to determine what the actual wage is for the position. The actual wage will be the highest wage paid within this group of comparable employees.
- The employment of the H-1B nonimmigrant will not adversely affect the working conditions of workers similarly employed in the area of intended employment.
- There is no strike or other labor dispute at the place of employment.
A copy of the LCA has been provided to each H-1B worker employed pursuant to
the LCA and the employer has provided notice of the LCA to the bargaining representative
of the workers in the occupation or, if there is no bargaining representative, the
LCA has been posted for at least ten days in at least two conspicuous locations where
the H-1B nonimmigrant will be employed. The regulations impose complex requirements
regarding posting where the employee will be working at sites other than where the
petitioning employer is located. The employer must make the LCA and supporting documents
demonstrating compliance with the LCA rules available in a public access file in the
principal place of employment or actual place where the employee will be employed
within one business day after the LCA is filed. Failure to comply with the LCA regulations
can result in the employer being forced to pay back wages to the H-1B worker as well
as civil monetary penalties or other administrative penalties and, potentially, a
bar on the employer sponsoring H-1B workers for a year.
The U.S. Department of Labor is required to process LCAs within seven working days of receiving the LCA.
- The H-1B nonimmigrant will be paid at least the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question OR the prevailing wage level for the occupation in the area of employment, WHICHEVER IS HIGHER. The prevailing wage figure can normally be obtained from one of several sources: a determination from the U.S. Department of Labor, an independent authoritative source survey, or another legitimate source. Department of Labor determinations are the most preferable since they provide the employer with "safe harbor" - that is, the Department of Labor has indicated that it normally will not challenge such wage findings. Stricter standards are usually applied to other sources.
What is the petitioning process for the employer?
The employer is required to submit to the U.S. Citizenship and Immigration Service (USCIS) the certified LCA form along with the H-1B petition (I-129), supporting documentation, and any required filing fees. H-1B status may be extended for up to six years (extensions beyond six years may be possible if the employee is in the process of transitioning to lawful permanent residence - consult ISS for more details).
How are H-1B petitions handled at the University of Arkansas?
At the University of Arkansas, hiring departments must make requests to hire H-1B employees through International Students and Scholars. The process moves through the following steps:
- The hiring department completes the H-1B Request Form and Petition Support Letter and submits them to ISS.
- The prospective H-1B employee completes the Employee Information Packet and supporting documentation and submits them to ISS.
- ISS obtains the determination for the prevailing wage and verifies that the hire has been approved by Human Resources/Office of Equal Opportunity and Compliance.
- Upon obtaining the prevailing wage determination, ISS contacts the hiring department and instructs them on the next steps to be completed for the actual wage determination, etc.
- Upon determining the actual wage and verifying that the proffered wage is sufficient, ISS submits the Labor Condition Application (LCA) to the Department of Labor.
- Upon receiving the certified LCA (and provided all other supporting materials have been received from the department and employee), ISS prepares the I-129, finalizes the H-1B petition, and submits the H-1B petition to USCIS for processing.
- Once the H-1B petition is approved, ISS notifies the hiring department, the employee, and Human Resources.
- If the employee is outside the United States, he/she applies for an H-1B visa to enter the United States and begin employment.
How long does it take to process an H-1B petition?
Hiring departments and prospective employees should be aware that the H-1B petition process takes a significant amount of time; therefore, requests for initial H-1B petitions should be planned and initiated well in advance of the expected employment start date. ISS recommends initiating the request at least six months prior to the start of employment whenever possible. Preparation and processing times for H-1B requests are generally as follows:
- Collecting department and employee information and obtaining wage determinations: 2 to 8 weeks (depending on whether a Department of Labor prevailing wage review is required)
- Determining actual wage and obtaining certified Labor Condition Application (LCA): 1 to 2 weeks
- Obtaining decision on petition following submission to USCIS: 15 days (using premium
processing) to 7+ months (using standard processing)
- It is possible to request expedited processing of the H-1B petition by USCIS for an additional "premium processing" fee of $1,225. This fee is in addition to the standard Fraud Prevention Fee (currently $500) and I-129 application fee (currently $460, as of December 23, 2016). Premium processing assures a response from USCIS within 15 calendar days of their receipt of the fee (please note that "response" may be approval, denial, or request for further evidence).
Who pays the fees for the H-1B petition process?
In keeping with federal regulations, the University of Arkansas requires hiring departments to pay the Fraud Prevention Fee (currently $500, required for all first-time H-1B petitions for a particular employee) and I-129 fee (currently $460 as of December 23, 2016, required for all first-time and extension petitions). The department must not permit the employee to pay these fees, and must not attempt to recoup these fees from the employee in any way.
If premium processing service is used, this fee (currently $1,225) may be paid either by the hiring department or the employee.
- If the department requires the employee to begin work on a specific date and that start date is not viable without utilizing premium processing, then the department must pay the premium processing fee. Similarly, if the department requires the employee to travel internationally for University business and the employee would have to present evidence of an approved H-1B petition in order to obtain a new visa to re-enter the United States in H-1B status, the department must pay the premium processing fee.
- If the employee wishes to utilize premium processing purely for his/her own convenience (such as to be able to travel internationally for purely personal reasons, to be able to obtain a new driver's license or other benefits more quickly, etc.), then the employee may pay the premium processing fee. All requests to permit an employee to pay the premium processing fee for an H-1B petition filed by the University are subject to review and approval by ISS.
If the employee is accompanied by dependent family members who need to apply for change and/or extension of nonimmigrant status in the United States, the fee for this application (currently $370 as of December 23, 2016) is generally paid by the employee. However, in the past a few departments have opted to cover this fee on the employee's behalf, and this is permissible if the department wishes to do so.
Last Updated: February 23, 2017