H-1B visa applications impose many requirements, but the requirements generally fall into two categories — requirements in regard to the type of work the employee will be doing, and requirements involving proof of qualifications provided by the employer.
Specialty Occupation H-1B Visa Requirements
A petitioner is only eligible for an H1-B visa if their employment position is recognized as a “specialty occupation.” Employment that will qualify as a specialty occupation normally includes positions requiring a bachelor’s degree and/or knowledge and experience that is equivalent to a bachelor’s degree or higher.
Professional employment positions requiring graduate school, including doctors, lawyers, etc., generally meet the specialty occupation requirement under one condition — the H-1B alien must possess the required U.S. State licenses in the jurisdiction where the applicant will work.
Employers must also demonstrate that the H-1B visa applicant is fully qualified for the type of employment position after establishing that the position qualifies as a specialty occupation. Employers may verify that the applicant is qualified for their position by providing documentation of the H-1B alien’s completion of the type of degree required for the position. The degree usually must be a bachelor’s degree or higher from an accredited institution in the US. or the foreign equivalent of such a degree. If the H-1B alien does not have a degree, an employer may meet this requirement by providing evidence of specialized training, experience, or other form of education.
Other Employer H-1B Visa Requirements
In addition to providing evidence of a specialty occupation and accompanying qualifications, the employer must have an IRS tax identification number. This requirement allows for many business structures to employ an H-1B alien, so long as the employer is legally a U.S. employer.
Likewise, the U.S. employer must establish an employer-employee relationship — as opposed to an independent contractor relationship — with the employee. In an employer-employee relationship, the employer maintains full control over the employee’s work, including the ability to supervise or fire said employee.
It is required by the U.S. Department of Labor (DOL) and the United States Citizenship & Immigration Service (USCIS) that employers must verify other specific information about the nature of the employment. The DOL requires the employer to file a labor condition application (LCA) before the H-1B visa application may be submitted. The LCA requires that employers report data about the company’s total number of employees, as well as information about the H-1B alien’s job description, salary, and tasks.
Filing the Labor Condition Application (LCA)
When filing the LCA, the employer must also confirm that the H-1B visa applicant will receive a wage at least as high as the salary granted to other employees in similar positions in the same geographic region. This verifies that the H-1B alien will receive the “prevailing wage.” The employee must then confirm several other labor conditions:
- The H-1B alien’s employment will not create an adverse working environment for other employees
- There is no current labor strike or lockout
The DOL may conduct a company investigation if there is reasonable cause to suspect that the employer of an H-1B alien has failed to comply with regulations. Because of this, employers should save the documentation they rely on to generate their statements in the LCA.
LCA Certification Requirements
The LCA must be filed in the U.S. State jurisdiction where the employee will conduct work, regardless of where the employer is headquartered and/or operates. Additional requirements may be necessary for employees who will be working in multiple jurisdictions, whether simultaneously or in succession. In this case, employers should always file the LCA in the H-1B alien’s initial work jurisdiction, but may be required to list other expected work locations.
If the alien already possesses an H-1B visa with another employer, the new employer must still file an LCA before the alien can be permitted to work. The LCA allows employers to specify employment periods of up to three years, except for Chile and Singapore H-1B visa programs. Once the specified period has ended, the employer may face new LCA requirements; thus, a new LCA will need to be filed.
The USCIS reviews the components of the H-1B visa application and determines whether the H-1B conditions have been met. Employers are not permitted to allow an H-1B alien to begin work prior to receiving a notice of approval from the USCIS.
Employers who submit H-1B visa applications on the behalf of computer professionals may be faced with specific requirements since these employers typically work at third-party locations involving contracts between employers and their customers. In this case, the USCIS may additionally require an employer to submit these third-party agreements to establish that the employer, and not the third-party customer, is the H-1B applicant’s true employer. A Notice of Action may be triggered by the USCIS, delaying the approval process, in the event that the employer fails to submit the relevant third-party agreements.
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