H-1B status is a non-immigrant category for foreign workers who wish to perform services in a specialty occupation, services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project, or services as a fashion model of distinguished merit or ability.
The H-1B Category has a number of key factors, including the following:
- Only professional positions that qualify as “Specialty Occupations” will be eligible for H-1B visa.
- There are Caps on the number of visas every fiscal year, 65,000 for beneficiaries with bachelor’s degrees and an additional 20,000 for advanced degree graduates from U.S. universities. There are also significant exemptions from the caps for various types of employers, including institutions of higher education and non-profit organizations affiliated with colleges and universities.
- For cap subject H-1B petitions, employers must register with U.S. Citizenship and Immigration Service (“USCIS”) for the Electronic Registration Process and be selected during the electronic lottery then they can file the petition with USCIS. Cap subject H-1B is based on the government’s fiscal year, which starts on October 1, so, even if selected and approved, new employees could not begin their time in H-1B status until that date, at the earliest, with the exception of F-1 students in Optional Practical Training (OPT) who may be eligible for Cap Gap.
- Employer must first submit a Labor Condition Application (LCA) to the U.S. Department of Labor (“DOL”) before filing an H-1B petition with USCIS, and comply with various wage, posting, and public access file (PAF) requirements.
- H-1Bs are granted for an initial period for up to three years and may be extended but generally cannot go beyond six years, except that additional time may be granted for people with pending green card applications.
- H-1Bs have wage requirements. Employer must pay the H-1B worker at least the Prevailing Wage for the offered position. Prevailing Wage for any occupation will be determined by the primary duties, experience required, licensure required geographic location of the employment, etc.
- Employers must pay the costs associated with the H-1B petition and cannot pass those costs to the employee.
- H1-B worker’ spouse and unmarried children under 21 years of age may seek admission in the H-4 nonimmigrant classification. Certain H-4 dependent spouses of H-1B nonimmigrants can file for Employment Authorization if the H-1B nonimmigrant has already started the process of seeking employment-based lawful permanent resident status.
What jobs qualify as Specialty Occupations?
A specialty occupation requires the theoretical and practical application of highly specialized knowledge along with at least a bachelor’s degree (or equivalent). Some of the occupational categories where H-1Bs are available are:
- Physical Sciences;
- Social Sciences;
- Medicine and Health;
- Business Specialties;
- The Arts.
To qualify as a specialty occupation, the position must meet one of the following criteria:
• A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
• The degree requirement is common to the industry in parallel positions among similar organizations, or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
• The employer normally requires a degree or its equivalent for the position; or
• The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
Electronic Lottery Process
Since 2020, USCIS implemented an electronic registration process for the H-1B cap selection. Prospective employers/petitioners seeking to file H-1B cap-subject petitions must first electronically register and pay the associated registration fee for each prospective beneficiary.
Under this process, prospective petitioners, and their authorized representatives, who are seeking to employ H-1B workers subject to the cap, complete a registration process that requires only basic information about the prospective petitioner and each requested worker. The H-1B selection process will be run on properly submitted electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions.
H-1B Registration Process Timeline:
- March 1: H-1B registration period opens at noon Eastern.
- March 18: H-1B registration period closes at noon Eastern.
- March 31: Date by which USCIS intends to notify selected registrants.
- April 1: The earliest date that FY 2023 H-1B cap-subject petitions may be filed.
Labor Condition Application
Whether filing a cap subject petition with selection in the lottery, a cap-exempt petition, an extension for a person already in H-1B status, or a transfer of H-1B status, the process will begin by filing a Labor Condition Application (“LCA”) with the Department of Labor (DOL”).
In filing the LCA, the employer must submit to DOL the specifics of the position, including title, start date, worksite location, the wage to be paid, and the prevailing wage for the Standard Occupational Classification (“SOC”) code and wage level that was chosen. DOL typically certifies the LCA within seven business days. A certified and signed copy of the LCA is eventually submitted to USCIS as a part of the H-1B petition. Once certified, an LCA is valid for up to three years. An H-1B cannot be approved without a valid LCA.