SPECIALTY OCCUPATION (H-1B)
H-1B VISA FOR PROFESSIONALS IN SPECIALTY OCCUPATIONS
The H-1B visa is designed to allow qualified professionals in specialty occupations to enter the United States to perform specialized, professional-level work for U.S. employers. The visa also allows individuals to perform services in their specific field, including a designated subcategory for fashion models of distinguished merit and ability.
Both the Proffered Position and the Prospective H-1B Employee Should Qualify
Not only the prospective employee but also the proffered position and prospective employee should qualify for the H-1B visa. For a proffered position to qualify for an H-1B visa, it must be a “specialty occupation” position. The employer must demonstrate that the position meets the criteria for a specialty occupation by providing detailed information about the job offered, including its educational requirements and the specific field of study required.
Specialty occupation is an occupation that requires:
- A theoretical and practical application of a body of highly specialized knowledge; and
- Attainment of a bachelor’s degree or higher in a specific field related to the job offered (or its equivalent) is a minimum educational requirement for entry into the occupation in the United States.
The H-1B regulations further require that a position also meet one of the following criteria to qualify as a specialty occupation:
- A bachelor’s degree or higher, or its equivalent in a specific field, is usually the minimum educational requirement for the position.
- The degree requirement is common in the industry for 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 in a specific field.
- The employer normally requires a degree or its equivalent for the position.
- The nature of the specific duties is so specialized and complex that the knowledge required to perform them is usually associated with a bachelor’s degree or higher in a relevant field.
To further clarify, the position must require theoretical and practical application of specialized skills and knowledge typically acquired through higher education in a specific field.
For a prospective employee to qualify for the proffered H-1B position, regulations specify that the foreign national should have either one of the following:
- Full state licensure to practice in the occupation (if required);
- Completion of the degree required for the occupation; or
- Progressively responsible work experience in the specialty equivalent to the completion of such a degree. Thus, a general degree absent specialized experience may be insufficient because there must be a showing of a degree in a specialized field. The educational requirements for the job offered must be clearly documented, and detailed information about the job duties and qualifications is necessary to demonstrate that the position is eligible for H-1B sponsorship.
H-1B Annual Cap and Visa Allocation
The H-1B visa program is subject to an annual numerical limit set by Congress. Currently, the standard annual cap is 65,000 H-1B visas per fiscal year. However, not all H-1B visas fall under this general quota.
Each year, 6,800 visas are reserved from the regular cap for the H-1B1 program, which is available exclusively to nationals of Chile and Singapore. If any of these H-1B1 numbers go unused, they are returned to the general H-1B pool in the following fiscal year. As a result, the effective number of H-1B visas available under the regular cap is typically 58,200.
In addition to the regular cap, there is a separate advanced degree exemption, commonly known as the master’s cap. Under this provision, 20,000 additional H-1B visas are reserved each year for foreign nationals who have earned a U.S. master’s degree or higher from an accredited college or university. This gives eligible candidates with U.S. advanced degrees an extra opportunity to be selected in the H-1B lottery.
Employers subject to these numerical limits are referred to as cap-subject employers, meaning they are not otherwise exempt from the H-1B quota. The annual cap system limits the number of foreign professionals who may enter the United States under the H-1B program.
Duration
A person may hold H-1B status for a maximum of six years, and it may be issued in increments of up to three years by the United States Citizenship and Immigration Services (USCIS). The initial employment period for H-1B status is typically up to three years, with possible extensions available. An employee may receive extensions of H-1B status beyond six years in certain circumstances if the employee is in the process of applying for employment-based permanent residence (commonly called a “green card”).
Labor Condition Application (LCA) for H-1B Nonimmigrant Workers
Before an employer can file Form I-129, Petition for a Nonimmigrant Worker, with USCIS for an H-1B employee, the employer must first obtain a certified LCA from the U.S. Department of Labor (DOL). This requirement applies to all H-1B petitions except those involving certain Department of Defense research and development or co-production projects. The LCA process is part of the broader labor certification and foreign labor certification requirements administered by the DOL to ensure compliance with wage and working condition standards.
The LCA must be submitted electronically through the DOL’s Foreign Labor Application Gateway (FLAG) system. In the LCA, the employer makes several mandatory attestations, including that:
- Wage Requirement: The employer will pay the H-1B worker at least the higher of:
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- The wage paid to similarly qualified U.S. workers in the same position.
- The prevailing wage for the occupational classification in the area of intended employment.
- Working Conditions: The employment of the H-1B worker will not adversely affect the working conditions of similarly employed U.S. workers.
- No Labor Dispute: There is no ongoing strike, lockout, or labor dispute in the occupational classification at the intended place of employment.
These attestations are designed to protect U.S. workers while allowing employers to hire qualified foreign professionals when needed. Training administration and employer filing responsibilities are critical in maintaining compliance with H-1B regulations, as employers must properly manage the filing process and adhere to all regulatory requirements throughout the H-1B program.
LCA Notice and Public Access File (PAF) Requirements for H-1B Employers
LCA Posting Requirement
Before filing an LCA, an employer must provide advance notice of the LCA filing. If a union represents workers in the relevant occupational classification, the notice must be provided to the union. If there is no union, the employer must post notice at the worksite.
The notice may consist of the LCA itself or a separate written notice that is clearly visible and of sufficient size. The notice must include:
- A statement that H-1B workers are being sought
- The number of H-1B positions requested
- The occupational classification of the positions
- The wage rate offered
- The period of intended employment
- The worksite location(s) where H-1B employees will be placed
- A statement that the LCA is available for public inspection
- Information on where complaints may be filed
The notice must be posted in at least two conspicuous locations at each place of employment where an H-1B worker will be assigned. Posting must occur on or within 30 days before filing the LCA and must remain posted for a total of 10 consecutive days.
Notices may be placed in areas where other mandatory workplace postings (such as wage and hour or OSHA notices) are displayed.
Electronic Notice Option
Employers may alternatively provide notice electronically to employees in the same occupational classification. Acceptable electronic methods include:
- Company intranet or internal website
- Electronic bulletin board
- Company-wide email
If notice is provided by email, a single transmission satisfies the requirement. For website or bulletin-board postings, the notice must remain accessible for 10 days.
Notice must be provided at each worksite listed on the LCA, including worksites added later, as long as they fall within the LCA’s area of intended employment.
Public Access File (PAF) Requirement
Employers filing an H-1B LCA must also maintain a Public Access File (PAF). The PAF must be available for inspection by interested or affected parties and must be kept either at the employer’s principal place of business or at the relevant worksite.
An “interested party” includes any individual or entity that has notified the DOL of a concern regarding the employer’s compliance with LCA requirements.
The PAF must be made available within one business day after the LCA is filed and must contain:
- A copy of the certified LCA
- Documentation of the wage rate paid to the H-1B worker
- A clear explanation of how the “actual wage” was determined
- Documentation supporting the prevailing wage determination
- A copy of the notice provided to the union or employees
- A summary of benefits offered to U.S. workers in the same occupational classification, and if different, an explanation of how benefit distinctions are made (without revealing proprietary information)
When an Amended or New H-1B Petition Is Not Required
An employer is not required to file a new or amended H-1B petition when the employment relationship between the company and the H-1B worker remains unchanged, and there are no material changes to the terms and conditions of employment. However, changing employers while on an H-1B visa generally requires a new petition, except when the employment relationship remains unchanged.
In such cases, amended filings are not needed for:
- Worksite Changes Within the Same Geographic Area: If the H-1B employee moves to a new work location that remains within the same geographic area — generally within normal commuting distance or the same Metropolitan Statistical Area — no amended petition is required.
- Short-Term Worksite Placements: An amended petition is not required for short-term assignments:
- Up to 30 days, or
- Up to 60 days if the employee continues to maintain a primary (“home”) worksite, provided the employer complies with the short-term placement rules under DOL regulations.
- Non-Worksite Locations: A petition amendment is not necessary when the employee is temporarily present at locations that are not considered regular worksites, including:
- Attending training sessions or professional conferences,
- Positions involving minimal time at any single location, or
- Jobs requiring occasional, short-term travel to client or project sites.
Effect of an Approved Petition on H-1B Visa Adjudication
Petition approval is a critical step in the H-1B visa application process, serving as prima facie evidence that USCIS has determined the basic requirements for the requested visa classification have been satisfied. However, USCIS approval does not guarantee visa issuance. The applicant still bears the responsibility of proving eligibility for the visa at the time of the consular interview. During the visa application process, it is important to ensure that the job qualifies as a specialty occupation and that all documentation is properly submitted. Applicants may also need to submit a status request if they are seeking a change of status or an extension of stay, and must provide the required evidence. Additionally, the requested start date on the petition is crucial, as USCIS will not approve the petition if it falls within a fiscal year when the H-1B cap has already been reached.
Although most approved petitions are valid, consular officers must independently verify that the information contained in the petition is accurate and truthful. The visa interview is the first opportunity in the petition-based process for a U.S. government representative to interact directly with the beneficiary, since USCIS communicates only with the petitioning employer or sponsor during petition adjudication.
Consular officers also apply local and cultural knowledge that USCIS adjudicators may not have, which can help identify exaggerations, inconsistencies, or potential misrepresentations in an applicant’s qualifications or background.
Maintaining Status With the Same Employer
Maintaining H-1B status with the same employer requires ongoing compliance with a range of immigration, labor, and employment regulations. For a foreign worker to continue employment in a specialty occupation, the employer must ensure that the position still requires the theoretical and practical application of highly specialized knowledge and that the employee holds at least a bachelor’s degree or higher in the specific specialty. The job duties must remain consistent with those described in the original petition, and any significant changes may require an amended filing.
The H-1B visa is typically granted for an initial period of up to three years, with the possibility of extension for a total of six years. To extend H-1B status, the employer must file a new petition with USCIS before the current period of authorized stay expires. This process includes obtaining a new LCA from the DOL, in which the employer attests to paying the prevailing wage or the actual wage paid to similarly qualified employees, whichever is higher. The employer must also confirm that the employment of the H-1B worker will not adversely affect the working conditions of U.S. workers in similar positions.
There are certain categories of cap-exempt H-1B visas. One such category is for foreign nationals with an employment offer from an institution of higher education (or a related or affiliated nonprofit entity) or from a nonprofit/government research organization.
To be classified as cap-exempt, it is not mandatory that the prospective H-1B employee be employed by the institution of higher education (or related or affiliated nonprofit entities) or nonprofit/governmental research organization. A prospective H-1B employee, employed by any employer, who will perform the majority of their work at the qualifying institutions, could qualify for the cap-exempt H-1B visa provided the work performed should ‘predominantly further’ the normal, primary, or essential purpose of the qualifying institution.
Even for cap-exempt H-1B visas, review and enforcement are carried out by agencies such as U.S. Customs and Border Protection and the Department of Homeland Security, which oversee border protection and homeland security measures to ensure compliance with immigration laws and national security policies.
Frequently Asked Questions
What Are the Requirements to Participate in the H-1B Program?
The H-1B visa program, established under the Immigration and Nationality Act (INA) and amended by the Immigration Act of 1990 (IMMACT), allows U.S. employers to temporarily hire foreign professionals in specialty occupations or as fashion models of distinguished merit and ability.
The primary purpose of the H-1B program is to help U.S. employers fill critical skill gaps when qualified U.S. workers are not available. At the same time, the law imposes strict compliance obligations to ensure that U.S. workers are protected and that H-1B employees are treated fairly.
Employer Compliance Requirements for H-1B Sponsorship
All employers who sponsor H-1B nonimmigrant workers must adhere to the following obligations:
- Maintain a Labor Condition Application (LCA) (Form ETA 9035 and/or ETA 9035E) with accurate information for each permanent work site.
- Pay the H-1B worker the required wage rate for their occupation at each permanent work site.
- Offer the H-1B worker the same working conditions and fringe benefits as similarly employed U.S. workers.
- Avoid employing an H-1B worker during a strike or lockout in their occupation.
- Inform workers or their bargaining representative of your intent to employ an H-1B worker at any location where other workers share the same occupational classification for which an H-1B worker is sought or placed.
- Provide each H-1B worker with a copy of the LCA.
- Refrain from requiring or allowing the H-1B worker to pay the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) petition filing fee.
- Do not impose any early cessation penalty on the H-1B worker.
- Do not retaliate or discriminate against any worker who discloses information that they believe shows a violation of this program or cooperates with any proceeding concerning the employer’s compliance with this program.
- Ensure that the H-1B worker receives payment for all work-related expenses.
- Notify the USCIS of any changes in the H-1B nonimmigrant’s work status, such as when the Department of Labor requires a new LCA or when the work is terminated, regardless of the reason.
Is it mandatory to file a new LCA if an H-1B employer undergoes a change in its corporate entity?
No, the successor entity generally doesn’t need to file a new LCA, provided the new entity agrees to assume the predecessor entity’s obligations and liabilities under the existing LCA. This agreement must be in writing and included in the public access materials.
The successor entity must comply with the conditions of the LCA. For instance, the “new” employer must continue to comply with the attestations covering:
- Wages;
- Place(s) of employment;
- Strike/lockout;
- Notification;
- “Exempt” H-1B worker(s) (see WH Fact Sheet #62Q); and
- Dependency status.
Any new paperwork, such as an LCA or petition, submitted to the Department of Labor or USCIS must accurately reflect the legal name of the successor entity.
A successor entity must file a new LCA under any of the following conditions:
- The H-1B worker is in a different occupation than USCIS originally adjudicated; or
- The H-1B worker is at a job site not covered by the existing LCA.
Who is an H-1B-dependent employer?
An employer is deemed H-1B-dependent if it meets any of the following criteria:
- It has 25 or fewer full-time equivalent employees and at least eight H-1B nonimmigrant workers.
- It has 26 to 50 full-time equivalent employees and at least 13 H-1B nonimmigrant workers.
- It has 51 or more full-time equivalent employees, of whom 15 percent or more are H-1B nonimmigrant workers.
What records are mandatory for all H-1B employers to maintain?
All H-1B employers are required to maintain below records and make them accessible to the Wage and Hour Division upon request.
- Name, address, occupation, and social security account number for all H-1B workers and any other worker employed by the employer in the same occupation at the place of employment;
- Rate of pay, hours worked (if hourly or part-time), gross pay, deductions, and net pay for all H-1B workers and any other worker employed by the employer in the same occupation at the place of employment;
- Benefit plan(s) offered and provided;
- Labor Condition Application (LCA) (Form ETA 9035 and/or ETA 9035E);
- Prevailing wage rate and its source;
- Method used to establish the actual wage;
- Documentation that the notice requirement was satisfied;
- In the event of corporate change:
- A. Sworn statement by successor entity accepting all liabilities of predecessor entity;
- B. List of H-1B workers transferred to successor entity;
- C. Affected LCA number(s) and effective date(s);
- D. Description of successor entity’s actual wage system; and
- E. Successor entity’s employer identification number.
Is it mandatory for an H-1B worker to receive a guaranteed wage?
The H-1B employer is obligated to pay its H-1B worker(s) at least the “required” wage, which is the higher of the prevailing wage or the employer’s actual wage (in-house wage) for similarly employed workers.
What is the prevailing wage?
The prevailing wage is the wage rate set for a specific occupational classification in a particular geographical area of employment.
It can be determined through a union contract that specifies a wage rate for that occupation or, in the absence of a union contract, by calculating the weighted average of wages paid to similarly employed workers in the same occupational classification within the geographic area.
What is the employer’s actual wage?
The actual wage is the wage rate paid by the employer to all individuals with comparable experience and qualifications to the H-1B nonimmigrant’s experience and qualifications for the specific job at the workplace. It’s important to note that the actual wage is not an average of the wages paid to all workers in the same occupation. If there are no similarly employed workers, the actual wage is simply the wage paid to the H-1B worker.
Can the H-1B worker’s wage be either hourly or salaried?
Yes.
Is there a guaranteed minimum number of hours that must be paid?
Yes, the guaranteed minimum number of hours that must be paid to an H-1B worker for all periods is the number of hours reported on the Petition for Nonimmigrant Worker (Form I-129/I-129W). This guaranteed pay starts when the worker begins employment, but no later than 30 days after entering the U.S. to take the job, or 60 days after being authorized to work for the employer if the worker is already in the U.S.
Is it mandatory for the employer to pay the guaranteed minimum hours even if no work is provided?
Yes, the employer is obligated to pay the guaranteed minimum hours unless the H-1B worker is unable to work due to non-work-related reasons, such as a voluntary request for time off or other circumstances that prevent the worker from working.
If an H-1B worker is paid less than the required wage rate (the higher of prevailing or actual wage), does the program provide for any recovery of the required wage?
Yes, the Department of Labor’s Wage and Hour Division enforces the H-1B wage provisions. After an opportunity for a hearing, the division has the authority to order the employer to pay the required wage rate.
Are H-1B workers subject to any other federal wage regulations?
Yes. Other federal wage statutes apply to H-1B workers in the same manner as any U.S. worker.
What does “place of employment” mean?
The term “place of employment” refers to the physical location where an H-1B nonimmigrant worker actually performs their work. To ensure compliance, an employer must file a Labor Condition Application (LCA) (Form ETA 9035 and/or ETA 9035E) for the geographic area where they intend to employ an H-1B worker.
The LCA will apply to any worksites within this “area of employment,” and thus will control the prevailing wage determination, posting, and other worksite-related obligations of an employer.
What is the geographic area of intended employment?
The geographic area of intended employment refers to the area within the normal commuting distance of the place (address) where the H-1B nonimmigrant is or will be employed.
If the employer requires the H-1B worker to move from one worksite to another worksite within a geographic area of intended employment, must the employer obtain an LCA for each worksite within that area of intended employment?
No, the employer doesn’t need to obtain a new Labor Condition Application (LCA) for another worksite within the geographic area where the employer already has an existing LCA. However, while the prevailing wage specified in the existing LCA applies to any worksite within the geographic area of intended employment, the notice to workers must be posted at each individual worksite, and the strike/lockout prohibition also applies to each individual worksite.
What are an H-1B employer’s notification requirements?
U.S. workers must be notified on or within 30 days before the employer files the Labor Condition Application (LCA) (Form ETA 9035 and/or ETA 9035E) with the Department of Labor.
This notice must include:
- The number of H-1B nonimmigrants the employer is seeking to employ;
- The occupational classifications in which the H-1B nonimmigrants will be employed;
- The wages offered;
- The period of employment;
- The locations at which the H-1B nonimmigrants will be employed; and
- The following statement: “Complaints alleging misrepresentation of material facts in the labor condition application and/or failure to comply with the terms of the labor condition application may be filed with any office of the Wage and Hour Division of the United States Department of Labor.”
What are “exempt” H-1B nonimmigrants?
An exempt H-1B nonimmigrant is an H-1B worker who fulfills one of the following statutory criteria:
- Receives $60,000 annual wages; or
- Has attained a master’s or higher degree (or its equivalent) in a specialty related to the intended H-1B employment.
What is the short-term placement option?
An employer who needs to temporarily place an H-1B nonimmigrant worker in a location not listed on an existing certified Labor Condition Application (LCA) (Form ETA 9035 and/or ETA 9035E) can do so under the short-term placement provision without filing a new LCA for the temporary geographic area of employment. However, this provision can only be used for an H-1B nonimmigrant worker who is already in the United States and employed by the employer.
An employer can only place an H-1B worker in a short-term placement if all the following conditions are met:
- There is no strike/lockout in progress in the H-1B worker’s occupation at the short-term location;
- The employer does not already have an LCA on file for the geographic area of employment; and
- Placement of the individual H-1B worker at any site in an area of employment does not exceed 30 workdays (consecutive or non-consecutive) within a one-year period. Such placement may be for an additional 30 workdays, but for no more than 60 workdays, in a one year period, where the employer is able to show that the H-1B nonimmigrant maintains ties to the home worksite (e.g., a dedicated workstation at the permanent worksite; the employee’s abode is located near that worksite), and the worker spends a substantial amount of time at the permanent worksite.
What benefits should be provided to H-1B workers?
The employer must offer benefits to H-1B workers on the same basis, and in accordance with the same criteria, as the benefits the employer provides to similarly employed U.S. workers.
Benefits include the opportunity to participate in such programs such as:
- Health, life, disability, and other insurance plans;
- Retirement and savings plans;
- Cash bonuses; and
Non-cash compensation such as stock options (whether or not performance-based).
What is “Portability,” and to whom does it apply?
The portability provision aims to maintain the legal status of an H-1B nonimmigrant who is already residing in the United States. This provision enables the employed H-1B worker to transition to a new employer, provided that certain conditions are met.
- The new employer has filed a nonfrivolous Petition for a Nonimmigrant Worker (Forms I-129/I-129W) for the employment of the H-1B worker before the expiration of the worker’s authorized period of stay.; and
- The new employer has submitted, along with its petition, an unexpired, approved Labor Condition application (LCA) covering the same work that the individual is being hired to perform. The new employer may already hold an applicable LCA, or may have sought and received a new LCA in order to submit the petition.
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