H-1B Requirments

GENERAL REQUIREMENTS

FOR OBTAINING H-1B STATUS

H-1 B status is a nonimmigrant status which allows an alien to work in the United States for an initial period of up to three years. Thereafter, the alien must extend the status. A maximum stay of six years may be obtained.

If an alien is not given an H-1B visa to enter the United States in H-1B status, the Alien must change status to H-1B status, which usually requires waiting six months to avoid a claim that the alien has the intent to immigrate. In both cases, there must be an approved H-1B petition which allows the alien to work in this country. However, if the alien changed status to that of H-1B and then leaves the United States, the Alien must obtain an H-1B visa to reenter the United States.

H-1 B status is for foreign workers who perform work in "specialty occupations" in the United States. A specialty occupation is one which requires the theoretical and practical application of a body of highly specialized knowledge, and the attainment of a bachelor's degree or higher in a specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

Finally, H-1 B status allows an alien to have the dual intent to work temporarily or permanently. Dual intent allows an alien to work in H-1 B status while simultaneously seeking permanent residency status usually through the labor certification process or through some other immigration process.

There are several requirements which must be met before the United States Immigration Service will approve an H-1B petition. Those requirements are the following. The alien's employer must demonstrate a need for someone in a specialty occupation. The employer must show one of the following: (a) a bachelor's or higher degree is normally the minimum requirement for entry into the particular position; (b) the degree requirement is common in the industry in parallel positions among similar organizations, or the position is so complex or unique that it can be performed only by an individual with a degree;

and (c) the employer normally requires the degree for the position; (or) the nature of the duties are so specialized and complex that knowledge required to perform them is usually obtained through a bachelors level or higher education. The alien must have the required degree or an equivalent in a subject directly related to the position. The alien's employer must obtain a certification from the Department of Labor, in the region where the alien will work, that it has filed a labor condition application in the occupational specialty in which the alien will be employed which states (a) the number of H-1B employees sought; (b) their starting and ending dates of employment; (c) their gross wage; (d) the prevailing wage for the occupation in the alien's area of intended employment and (e) various other information.

The alien's employer must offer the alien no less than the greater the actual wage level paid to all other individuals at the worksite with similar experience and qualifications for the position in question; or the prevailing wage for the occupational classification in the alien's area of intended employment. However, in most instances, the alien's employer will be required to pay the alien the prevailing wage and not the actual wage level paid to all other individuals at the worksite with similar experience and qualifications for the position in question.

Determining the prevailing wage can be accomplished in one of several ways. The alien's employer must contact the local job service and ask them for the recommended wage based on studies the Labor Department has already done; or the employer can then either accept that wage or rebut it by one of the following ways. The employer can obtain a wage survey from an independent authoritative source published in a book, newspaper, periodical, loose-leaf service, newsletter or other medium within 24 months prior to filing the application; or use another legitimate source of wage data in which case, the employer will have to prove the legitimacy of the source if challenged.