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The BCIS has statutory authority to issue up to 65,000 H-1B visas per year to persons qualified to perform services in "specialty occupations".
"Specialty Occupation" is defined by statute 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 it's equivalent) as a minimum for entry into the occupation in the United States". The BCIS Regulations further expand upon this definition and provide that one or more of the following criteria must be met to qualify for H-1B status:
- A baccalaureate or higher degree or its equivalent is normally the minimum entry requirement for the position;
- The degree requirement is common in 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 it's 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 attainment of a baccalaureate or higher degree.
Not every occupation in which a degree is ordinarily required will qualify for H-1B eligibility. It is important to note that the BCIS has taken the position that many occupations staffed with personnel having a degree in a variety of fields such as general business administration are not "specialty occupations". Jobs in marketing, accounting and finance, however, are generally viewed as specialty occupations by the BCIS.
Generally, to meet the requirements of the H-1B specialty occupation, the applicant will need to produce the following items as evidence in support of their H-1B visa petition:
- Bachelor's degree or higher in the specific specialty;
- Full state licensure, if that is required for practice in the state of intended employment;
In the absence of a degree, proof of experience in the specialty occupation equivalent to the completion of the degree, and recognition of expertise in the specialty through progressively responsible positions relating to the specialty.
The "equivalence" requirement is an important exception to the general H-1B visa rule which requires proof of completion of a university degree. The U.S. Immigration & Nationality Act provides that H-1B visa applicants may produce a work experience equivalency from a recognized credentials evaluation service which confirms that the applicant's years of employment experience in the specialty occupation are equivalent to attainment of U.S. bachelor's degree in the specialty.
The BCIS uses a three (3) to one (1) years of experience to education ratio for H-1B equivalency cases. Therefore, if the applicant has at least twelve (12) years of experience in a specialty occupation and can demonstrate progressive responsibility in that position, a credential evaluation service may confirm that the twelve (12) years of experience are equivalent to four (4) years of education and attainment of a bachelor's degree (3:1 ratio).
The H-1B visa application procedure involves three distinct steps:
- Determining the prevailing wage for the specialty occupation in the state of intended employment.
- A request for the prevailing wage may be filed with the state employment security agency (SESA)
- The wage offered must be higher than or within 5% of the prevailing wage in the state of intended employment.
- Filing of a Labor Condition Attestation (LCA) with the Regional Office of the United States of Labor (DOL).
- The DOL must certify the LCA and ensure that it has been completed correctly and signed by the prospective employer.
- By law, the DOL should certify the LCA within seven (7) days of receipt but in most regions this policy is not adhered to.
The H-1B petition filing fee is $185 USD plus $500 in new H-1B petitions for anti-fraud fees. A new Training and Scholarship fee of either $750 or $1500 also applies depending on the size of employer. Companies with more than 25 employees must pay the higher $1,500 Training and Scholarship fee.
Processing times vary depending upon the state of intended employment, BCIS Service Center used, etcetera. On average though, the H-1B petition process takes between eight (8) and fourteen (14) weeks to complete. Applicants may now pay an additional $1,000 USD “Premium Processing fee” to expedite processing of their cases. Payment of this fee forces the BCIS to process an H-1B petition within 2 weeks of receipt.
Aliens are limited to a maximum of six (6) years in H-1B status. If approved, the BCIS will typically issue an H-1B visa petition for an initial period of three (3) years. One three (3) year extension is permitted in most cases and a new Labor Condition Attestation is required to support the request for extension.
The BCIS may confer H-1B status for less than three (3) years if the documentation submitted suggests that the duration of temporary employment will be less than three (3) years.
Spouses and dependent children are permitted to accompany the H-1B alien to the United States under H-4 (Dependent) status, but they may not accept employment while in H-4 status.
Our firm works closely with the prospective U.S. employer to carefully draft the required offer of employment letter. The offer of employment letter is the centerpiece of the H-1B visa petition and a case can be won or lost according to the content of this letter.
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