The H-1B category is for workers in specialty occupations, which means an occupation that normally requires attainment of at least a Bachelor’s degree. Generally one must have a degree in the specialty to qualify, or the degree equivalent. Positions in education, engineering, accounting, finance, and research are normally considered professional. For nontraditional professions, the CIS will look to the complexity or uniqueness of the job duties, and whether a degree requirement is common to the industry.
An employer must file a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL) attesting that the hiring of H-1B workers will not adversely affect the wages and working conditions of other U.S. workers in the same position at that location. The employer must determine the “prevailing” wage for the region, and attest that the wage offered to the foreign national is the higher of the “actual” and of the “prevailing” wage. Notice must be posted on-site, and an LCA file maintained for public inspection.
There is a numerical limit on the number of H-1Bs issued each year. The employer must plan well in advance of hiring an H-1B nonimmigrant worker because the annual allotment of H-1B numbers is used up soon after applications are accepted for the upcoming fiscal year. The H-1B petition can be approved for three years, and extended for an additional three years for a maximum stay in the U.S. of six years. Section 11030 of the 21st Century Department of Justice Appropriation & Authorization Act allows an H-1B employee to obtain extensions beyond the traditional six-year limit if an alien labor certification has been pending for over one year. If a PERM labor certification has been obtained and an employer’s I-140 immigrant petition approved, an H-1B worker who has used up the traditional six-year limit could seek a three year extension if no immigrant visa numbers are available. A person with an H-1B might be “portable” to a new employer once a LCA is filed with the DOL and a petition filed with the CIS. An additional $1225 fee can be paid to the CIS for “premium processing” so that the CIS will adjudicate an H-1B (or L-1) petition within 15 days (or at least issue a request for more evidence needed to promptly adjudicate such a petition).
