H-1B Visa for Specialty Occupation Workers

Below is a general summary of the H-1B visa for specialty occupations. It is not intended to serve as a comprehensive outline of all aspects of US Immigration Law pertaining to the H-1B visa.

An "H-1B" visa is a temporary visa that can be valid for an initial period of three years and, generally, a maximum continuous period of six years. The H-1B visa is for foreign workers who will work in the United States in a "specialty occupation."

The law defines a "specialty occupation" as one which:

"requires theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation AND which requires the attainment of a bachelor's degree or higher in a specific specialty as a minimum for entry into the occupation in the United States."

A general summary of the requirements and additional points of interest follow:

  1. A prospective employer must demonstrate that the position offered involves sufficiently complex job duties and the nature of the duties would necessarily require completion of a bachelor's degree in a particular field.
  2. The foreign national must have the requisite degree, or its equivalent, in a subject directly related to the job offered.
  3. The prospective employer must file a Labor Condition Application with the U.S. Department of Labor. In the application, the employer must attest to the location of work as well as wage offered and the working conditions.
  4. The prospective employer must compensate the foreign national at a salary or hourly rate that meets or exceeds either the prevailing wage or the actual wage (the wage paid to other similarly employed workers of the prospective employer), whichever is higher, for the particular position at the worksite location.
  5. The prospective employer must give notice that it plans to file an H-1B petition to the relevant collective bargaining unit (if any), or post a notice in 2 conspicuous locations at the prospective H-1B employee's worksite.
  6. The employer must pay the return transportation costs if the employee is dismissed before the expiration of the H-1B.
  7. An annual "regular cap" of 65,000 H-1B visas can be issued each federal fiscal year.  An additional 20,000 H-1B visas are available each fiscal year under the "masters cap."  Please note that some cases may not be subject to the annual cap.
  8. A third-party complaint process exists in which the employer's proposed wages or working conditions for the alien can be contested resulting in various employer liabilities.
  9. The six-year maximum period in H-1B status can be extended for additional years under certain circumstances.
  10. An H-1B employer can expect to be the subject of a site visit by the Fraud Detection & National Security unit (FDNS) of the United States Citizenship & Immigration Service.
  11. An H-1B employer must retain certain documents in a public access file. These documents must be made available to officials of the United States Department of Labor, if requested.

Contact Our San Diego Immigration Law Firm for More Information

Located in San Diego, California, Chawla Law Group commonly works with employees in specialty occupations and businesses seeking H-1B visas in San Diego, Los Angeles, the San Francisco Bay / Silicon Valley area, and throughout California. We are also happy to work with select clients elsewhere in the US and throughout the globe. Contact us by completing our online information form, calling (858) 586-0700, or emailing vchawla@chawlalaw.com.

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