The H-1B nonimmigrant classification is a vehicle through which qualified aliens may seek admission to the United States on a temporary basis to work in their fields of expertise. Prior to employing an H-1B temporary worker, a U.S. employer must first file an H-1B petition with USCIS. However, while USCIS is responsible for evaluating an alien’s qualifications for the H-1B classification, approval of an H-1B petition does not equate to admission of the alien to the U.S. in H-1B status. The Department of State (DOS) plays a vital role in the H-1B admission process.
Prior to filing the H-1B petition with USCIS, the U.S. employer must first file a Labor Condition Application (LCA) with the Department of Labor (DOL) specifying the job, salary, length and geographic location of employment. In addition, the employer must agree to pay the alien the greater of the actual or prevailing wage for the position. Once DOL approves the LCA, the U.S. employer may file the H-1B petition with USCIS.
To qualify as a specialty occupation, the position must meet one of the following requirements:
(1) a bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position;
(2) the degree requirement is common to 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;
(3) the employer normally requires a degree or its equivalent for the position; or
(4) 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 bachelor’s or higher degree.
In order to perform services in a specialty occupation, an alien must meet one of the following criteria:
(1) hold a United States baccalaureate or higher degree as required by the specialty occupation from an accredited college or university;
(2) possess a foreign degree determined to be equivalent to a United States baccalaureate or higher degree as required by the specialty occupation from an accredited college or university;
(3) have any required license or other official permission to practice the occupation (for example, architect, surveyor, physical therapist) in the state in which employment is sought; or
(4) have, as determined by USCIS, the equivalent of the degree required by the specialty occupation acquired through a combination of education, training, and/or experience. Specialty occupations may include, but are not limited to, computer systems analysts and programmers, physicians, professors, engineers, and accountants.
An alien may be admitted to the United States in H-1B status for a maximum period of six years; however, the H-1B petition may only be approved for a maximum period of three years. Thus, the H-1B petition may be used to sponsor an alien for an initial period of H-1B employment or to extend or change the authorized stay of an alien previously admitted to the United States in H-1B status or another nonimmigrant status. Additionally, an employer may file the petition to sponsor an alien who currently has status as an H-1B nonimmigrant working for another employer or to seek an amendment of a previously approved petition.
In the case of a petition to amend a previously approved petition, no corresponding request need be made to extend the authorized stay of the beneficiary.
Section 214(i)(1) of the Immigration and Nationality Act defines a specialty occupation as “an occupation that requires:
(A) the 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 its equivalent) as a minimum for entry into the occupation in the United States.”
For example, an employer may file an amended petition notifying USCIS of a different location where the beneficiary will be employed or a material change in the beneficiary’s job duties. Therefore, the total number of approved petitions exceeds the actual number of aliens who are provided nonimmigrant status as H-1B. At the end of the six-year period, the alien must either change to a different status (if eligible) or depart the United States.3 USCIS regulations provide that an alien who has been outside the United States for at least one year may be eligible for a new six-year period of admission in H-1B status.