The H-1B "Specialty Occupation"
One of the most common employment based nonimmigrant categories is the H-1B "specialty occupation." What is a "specialty occupation"?
In the immigration service's jargon, a specialty occupation is one whose specific duties are so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's degree or higher in that field.
OK...So what does that really mean?
The job your company is offering must require as a minimum qualification, a bachelor's degree in an academic field related to the job duties. Alternatively the job could require a bachelor's degree in the academic field or its equivalent in training and/or experience.
The degree requirement listed above must be common to the industry for similar positions at other employers.
The degree requirement is one which the employer normally requires for the type of job being offered.
Who qualifies for a "specialty occupation"?
My prospective employee does not have a bachelor's degree. Is this candidate dead in the water with respect to getting an H-1B? What is the equivalent of a bachelor's degree in a specialty field?
What kind of experience equates to a bachelor's degree?
Immigration service regulations provide that 3 years of progressive experience in the specialty occupation equals one year of university-level schooling. That means for each year of academic training less than the normal 4 years of schooling required to obtain a bachelor's degree, an alien must have three years of progressively responsible experience in the specialty occupation?
Example 1: Candidate has no post - secondary schooling but has 11 years of experience in the specialty occupation.-----DOES NOT QUALIFY FOR H-1B Status. The candidate must have at least 12 years of progressive experience in the specialty occupation to qualify as an H-1B worker.
Example 2: Candidate has a two-year associate's degree and seven years of experience in the specialty occupation......LIKELY TO QUALIFY FOR H-1B. The two years the alien lacks are compensated for by the six + years of experience that the alien possesses in the specialty. The experience must be shown to be PROGRESSIVE in the specialty. That means the candidate must have gained an increasingly complex understanding of the theoretical principles of the academic field which are required to perform the specialty occupation.
What if the degree is from a foreign institution?
Our law firm will have the degree evaluated by a professional credentials evaluator to determine if it is the equivalent of a United States Bachelor's degree. In order to do this we will need both the degree and transcripts with certified English translations.
OK---Are there any special rules regarding compensation (wages and/or benefits) that must be paid to an H-1B employee?
Yes, the Department of Labor enforces certain labor conditions on employers wishing to hire H-1B workers. They are:
These four conditions are attested to by the employer on a form called a Labor Condition Application (Form ETA 9035). This form is usually the first step in the preparation of filing an H-1B nonimmigrant petition.
Is my company H-1B dependent? What does that mean? Are there any further labor conditions I must abide by?
Recently passed legislation has added further labor conditions to those employers who are deemed H-1B dependent.
A company is deemed H-1B dependent if the employer has a total workforce of: a) 25 or fewer and there are at least 7 H-1B nonimmigrants; b) between 26 and 50 employees and the company has at least 12 H-1B nonimmigrants; or the company has more than 50 employees and has a workforce of more than 15% H-1B nonimmigrants.
EXEMPT H-1B EMPLOYEES
If employees earn more than $60,000 or have obtained a Master's Degree in a field related to the specialty they are deemed "exempt H-1B nonimmigrants" and are not to be included in the H-1B dependency count.
What if even after subtracting the exempt H-1B employees, my company is still H-1B dependent?
Please contact our firm. Your company may be subject to further labor condition requirements.
H-1B NONIMMIGRANT PETITION
After abiding by the above labor conditions and receiving a certified labor condition attestation from the Department of Labor, a company may file a nonimmigrant H-1B petition on behalf of the prospective employee. The petition will be accompanied by supporting documentation that proves the position being offered is a specialty occupation and that the alien qualifies as a specialty worker.
Can a worker be employed by the company while an H-1B petition is pending?
No. The alien must possess an approved petition and a corresponding arrival/departure card (form I-94) in order to be lawfully employed by a petitioning company.
Are there any exceptions to the rule that a prospective employee may not be employed by a petitioning company during the pendency of a nonimmigrant petition?
Yes. An alien who is continuing already existing H-1B employment with a petitioner in the same specialty occupation may be employed by that petitioner for a period of up to 240 days during the pendency of an extension petition.
What about traveling during the pendancy of an H-1B petition?
Please contact our office if your prospective employee is in the United States and is contemplating traveling outside the United States during the pendency of an H-1B petition. There are special rules regarding various situations where an alien will travel abroad and each situation must be examined to determine what is the best possible course of action for employers and prospective aliens to pursue.
THE H-1B SPECIALTY OCCUPATION IS AN EXTREMELY IMPORTANT EMPLOYMENT BASED NONIMMIGRANT CATEGORY. TAFAPOLSKY & SMITH WILL HELP YOU USE THE H-1B IN AN EFFICIENT AND LAWFUL MANNER.