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H-1B Series: Introduction - The H-1B "Specialty Occupation" Program - Good for Employers, Good for the U.S.
by George N. Lester IV

George N. Lester IV The H-1B nonimmigrant category allows qualified foreign workers to engage in temporary professional employment in the United States, sponsored by a U.S. employer. By using the H-1B program, U.S. employers can recruit and hire foreign workers with appropriate professional credentials to perform services in a "specialty occupation." H-1B classification can be obtained for an initial period of three years, and is renewable usually up to a total of six years, and beyond six years where certain steps have been taken towards acquiring permanent residence for the applicant in question.

The H-1B program is useful to U.S. employers of all forms and sizes. It is most known for helping high-technology employers deal with the acute shortage of skilled workers in the domestic labor market. However, it is also widely used by employers in other fields to hire professionals with particular qualifications or skills. The program provides access to an expanded pool of professional workers from which to recruit, including professionals located outside the U.S., located in the U.S. in a temporary status, or graduating from U.S. universities.

The H-1B program provides significant flexibility in meeting requirements that (1) the position offered be professional and (2) the foreign national beneficiary have certain qualifications. There is no strict list of specific occupations or required qualifications, for example, such as NAFTA contains for the TN category. Thus, although the H-1B program is most commonly associated with technical fields, employers can use the category for a broad variety of nontechnical positions, and foreign nationals may meet the relevant criteria through a variety of academic or nonacademic backgrounds.

The H-1B program also provides economic benefits to U.S. employers and to the U.S. economy. Because the program provides worldwide recruitment of skilled personnel, it helps U.S. employers maintain growth despite today's worker shortages. It also helps companies compete effectively in global markets by assisting them in attracting the best and brightest people in the world. A U.S. business that wants to be a world-class leader in its economic sector must be able to hire world-class talent. If it cannot, individuals with such talent will work for, or themselves start, competing businesses in other countries.

For these reasons, businesses, institutions, government agencies, and nonprofit organizations of all sizes regularly use the H-1B program as part of their overall human resources strategy. Some employers actively recruit H-1B workers in foreign countries, whereas others simply use the H?1B program to hire foreign nationals identified through traditional recruitment channels. Many employers recruit internationally merely by posting job openings on the Internet and are then approached directly from the foreign countries.

Before setting out to recruit or hire an H-1B foreign worker, however, employers should be aware of the legal requirements and procedural challenges involved in the program. Without adequate planning and attention to detail, the H-1B process can be difficult and frustrating. The substantive requirements to obtain H-1B classification for a foreign national and to secure the foreign national's actual status in the U.S. can present traps for the unwary. The actual petition process requires completion of a variety of forms and submission of several categories of supporting documentation, and delay will result if they are not in order. INS processing times for the petition are unpredictable and can be quite long, preventing the employer from making concrete plans for the foreign worker's arrival, unless the employer pays an extra $1000 fee to INS for "premium processing" within a set time frame. A number of record-keeping obligations as well as substantive legal obligations are imposed on the employer, many of which are on on-going during the time that the foreign worker is employed. At certain times of the year the program may not even be available due to exhaustion of the annual quota for new H-1B workers.

About The Author

George N. Lester IV is of the Immigration Practice Group (the "Group") of the law firm of Foley, Hoag & Eliot LLP. Foley, Hoag & Eliot LLP is a full-service law firm of 200 lawyers in Boston and Washington, D.C. It was the first large law firm in Boston to develop an expertise in business immigration law, and for over thirty years its Group has represented employers in a full range of procedures to obtain temporary or permanent authorization to employ foreign professionals. Mr. Lester has practiced immigration law for ten years, and regularly speaks to business, academic, and professional groups on immigration topics. As part of his regular AILA activities, Mr. Lester meets with officials of the INS Vermont Service Center to discuss H-1B and other liaison topics. He also serves as Treasurer and a Board Member of the Political Asylum/Immigration Representation Project (PAIR) in Boston, and received that organization's Pro Bono Attorney Award for Dedication and Commitment to Human Rights in May 1996. Mr. Lester is a 1989 graduate of Northeastern University School of Law.

This article is based on a chapter titled "Specialty Occupation Professionals," by George N. Lester IV in Business Immigration Law: Strategies for Employing Foreign Nationals by Rodney A. Malpert and Amanda Petersen and appears here with the permission of the publisher. Published by Law Journal Press. Copyrighted by NLP IP Company. All rights reserved. Copies of the complete work may be ordered from Law Journal Press, Book Fulfillment Department, 105 Madison Avenue, New York, New York 10016 or at or by calling 800-537-2128, ext. 9300.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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