A U.S. employer can obtain temporary authorization for a qualified non-U.S. person to work in a specialty occupation. A specialty occupation requires the theoretical and practical application of a body of highly specialized knowledge. This generally includes positions that are commonly filled by persons holding a bachelor’s degree or higher qualification.
|1.||The position is determined to be in a specialty occupation and a bachelor’s degree is normally the minimum entry qualification.|
|2.||The non-U.S. worker holds either (i) a U.S. bachelor’s degree required for the specialty occupation, (ii) a non-U.S. bachelor’s degree equivalent to the relevant U.S. bachelor’s degree, (iii) unrestricted State certification to practice the specialty occupation, or (iv) education, training, and progressively responsible experience that is the equivalent of a U.S. bachelor’s degree.|
|3.||The employer pays the non-U.S. citizen at least the prevailing wage for the position in the locality or the same wage as he pays to similarly situated U.S. employees, whichever is the greater.|
|4.||The employer attests that employment of the non-U.S. worker will not adversely affect working conditions and that other employees have been notified of the proposed employment. Employers that employ a high proportion of H-1B workers must make additional attestations.|
|5.||The employer undertakes to pay for the employee’s return transportation in the event of early dismissal.|
In practice, the H-1B visa application has three stages. The first stage involves ascertaining the prevailing wage in the locality for the position offered and filing a labor condition application with the Department of Labor. The labor condition application notifies the Department of Labor that a non-U.S. employee is being hired and sets out the employer’s attestations to the effect that it does not impact adversely on U.S. workers. The labor condition application is specific to a particular place of employment and employment of the non-U.S. worker at other work sites is regulated. The employer must maintain documentation relating to the non-U.S. worker, part of which is open to public scrutiny.
Once the labor condition application is properly filed and notice has been given to other employees, generally by posting a notice, a petition for H-1B status on behalf of the non-U.S. worker may be filed with the U.S. Citizenship and Immigration Service. The petition serves to explain and document that the non-U.S. worker qualifies for H-1B status.
In the last stage of the process, after approval of the petition, the non-U.S. worker must apply at a U.S. Embassy or Consulate in the home country to obtain an H-1B visa stamp in the passport. The U.S. Embassy does not generally enquire into the merits of the H-1B application but is concerned to ensure that the visa applicant is not excludable on criminal or other grounds. Nationals of Canada and British Commonwealth nationals resident in Canada are visa exempt and do not need to apply for a visa stamp.
H-1B status can be granted for up to three years initially with one further extension of up to three years. After the six year maximum stay in H-1B status, the worker has to live for a year outside the U.S. before being readmitted in this status. There is no maximum period of stay for a non-U.S. worker who did not reside continually in the U.S. and whose employment in the U.S. was seasonal, intermittent, or for less than six months each year.
The H-1B visa does not automatically convert into permanent resident status (Green Card). In order to qualify for a Green Card through employment, a professional worker generally has to show that no U.S. workers with the minimum qualifications for the position offered are available. The U.S. employer offering the position must perform a bona fide recruitment program in accordance with Department of Labor requirements to seek out qualified U.S. candidates. The non-U.S. worker may not be selected in favor of qualified U.S. candidates merely because he/she is better qualified. This process of labor certification together with an immigrant petition generally takes several months to complete.
Labor certification is not required for professionals holding advanced degrees where their admission is in the national interest. Advanced degrees include master’s degrees and bachelor’s degrees with five years progressive experience. Similarly, non-U.S. workers with extraordinary ability who are at the very top of their profession may also be approved for a Green Card without showing that there are no qualified U.S. candidates for the position.