Although H-1B visa applications impose a number of requirements, these conditions generally fall into two broad categories—requirements about the type of work the employee will be doing (the specialty occupation requirement), and other requirements concerning the employer.
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Employee Specialty Occupation H-1B Requirements
Eligibility for H-1B status requires that the employment position qualify as a “specialty occupation.” As a general matter, employment that requires a bachelor’s degree will qualify as a specialty occupation, as will other employment that requires specialized knowledge or experience that is the equivalent of a bachelor’s degree. Professional positions that require graduate work or certification (e.g., doctors, lawyers, teachers, etc.) generally meet the specialty occupation requirement, with an important caveat—the H-1B alien must have any U.S. State license that will be required in the jurisdiction where he or she will work.
In addition to establishing that the employment position qualifies as a specialty occupation, employers must also demonstrate that the H-1B alien is suitably qualified for that employment. Employers may meet this requirement by providing documentation that the H-1B alien has the type of degree required for the specialty occupation. Typically, the degree must be at least a bachelor’s degree from an accredited U.S. institution or the foreign equivalent of such a degree. In the absence of a degree, it may be possible to meet this requirement by providing evidence of specialized training/experience or other education.
Other Employer H-1B Requirements
First, in order to obtain an H-1B visa, the employer must be a “U.S. employer,” or an employer with an IRS tax identification number. This broad requirement allows for many different business structures: corporations, partnerships, individuals, privately held companies, and the like.
Second, the employer must be entering an employer-employee relationship with the H-1B alien, as opposed to an independent contractor relationship—in an employer-employee relationship, the employer retains control over the employee’s work, including the ability to supervise or fire that employee.
LCA Requirement
Both the Department of Labor (“DOL”) and the United States Citizenship & Immigration Service (“USCIS”) require employers to verify other specific information about the nature of the employment being proposed. DOL requires that employers file a labor condition application (“LCA”) prior to submitting the H-1B visa application itself. The LCA requires employers to report certain general data about its total number of employees, as well as data about the H-1B alien’s future job (job description, salary, and duties).
Filing the Labor Condition Application (LCA)
In the LCA, the employer must also verify that the H-1B alien will be paid a wage at least as high as the wage paid to other employees in similar positions in the same geographic region—an assertion that the employee will be paid the “prevailing wage.” Finally, the employer must make several other affirmations about labor conditions: 1) that the H-1B alien’s employment will not create adverse working conditions for existing employees; and 2) that there is not currently a labor strike or lockout. DOL may initiate an investigation if there is reasonable cause to suspect that an employer has failed to comply with DOL regulations; for this reason, employers should preserve the documentation they rely on to generate their statements in the LCA.
Requirements of the LCA Certification
Employers must file the LCA in the jurisdiction where the employee will actually perform work, regardless of where the employer is headquartered or does business. For employees who will be working in multiple jurisdictions, either simultaneously or in succession, there may be additional requirements; although the employer should always file the LCA in the jurisdiction where the H-1B alien will first work, employers may be required to list other expected work locations, as well. If the alien already has an H-1B visa with a different employer, a new employer must nevertheless file a new LCA before the alien begins the new position. With the exception of H-1B visas in the Chile/Singapore programs, the LCA permits employers to specify employment periods of up to three years; new LCA requirements may be triggered once the specified employment period has lapsed.
USCIS is the entity that reviews the application materials and makes a determination that the H-1B conditions have been satisfied. Employers should not allow an H-1B alien to begin working prior to receiving an approval notice from the USCIS.
Third-Party Agreements
Employers submitting H-1B visa applications for computer professionals may face specific requirements because these employees tend to perform work at third-party locations pursuant to contracts between the employer and its customer. In this situation, USCIS may require that an employer submit these third-party agreements to establish that the petitioner (employer), and not the customer, is the H-1B alien’s actual employer. Failure to submit the relevant third-party agreements may trigger a Notice of Action from USCIS, delaying the approval process.
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