The Specialty Worker Visa: H-1B
U.S. law provides for an opportunity to hire an alien on a temporary basis in a specialty occupation. A specialty occupation is one that requires the theoretical and practical application of a highly specialized body of knowledge, and a bachelor’s degree or its equivalent. This type of temporary, or non-immigrant, visa is called the H-1B.
An H-1B visa can initially be approved for up to three years. However, the visa can be extended in one year increments for a total of six years.
To apply, an employer must first file a Labor Condition Application, or LCA, with the Department of Labor. To do so, the employer must provide a certification regarding a number of legal requirements.
The employer must certify that:
- it will pay the greater of: (1) the actual wages paid by the employer to its employees with similar experience and education, or (2) the prevailing wage level for the occupational class in the area of employment,
- the working conditions its provides the H-1B worker will not adversely affect the working conditions of other workers similarly employed in the area,
- there is not currently a strike or lockout, and
- it has either provided notice of the filing to the bargaining representative of its employees, or if there is no bargaining representative it has posted notice in a conspicuous location or has given electronic notification to its employees.
An employer may file a single LCA for a number of prospective H-1B workers. However, it must specify the number of H-1B workers it seeks.
Once the LCA is certified by the Department of Labor, it is filed, along with a Form I-129, with the Department of Homeland Security.
Only 65,000 H-1B visas are available annually. However, of that number, 1,400 are specifically set aside for workers from Chile, and 5,400 for workers from Singapore. An additional 20,000 H-1B visas are available for workers holding a master’s degree or above from a U.S. institution. This is known as the H-1B cap.
Certain employers are exempt from the cap. They are institutions of higher education, non-profit research organization and governmental research organizations.
