H-1B Series: General Requirements of Program
The H-1B program requires that a specific job offer in the United States be made by a U.S. employer, and that the sponsoring employer file an petition with the INS for authorization to employ the foreign worker. This article contains a summary of the basic substantive requirements and procedural steps involved in preparing the H-1B "specialty occupation" petition and actually hiring the H-1B worker. This summary may serve as a general checklist prior to offering a job to a foreign professional for whom H-1B work authorization is necessary. The requirements will be discussed in more detail in subsequent articles.
-Status of Petitioner
The Petitioner must be a "United States Employer" or its agent. The U.S. employer is a "person, firm, corporation, contractor, or other association, or organization" in the U.S. which (1) engages a person to work in the U.S., as specified in the petition process, (2) has or will have an employer-employee relationship with the person or persons for whom it files H-1B petitions, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the employee's work, and (3) has a U.S. Internal Revenue Service tax identification number. A foreign entity may file a petition to employ an H-1B worker in the U.S., but only if it first establishes at least a U.S. "branch office" and obtains the requisite tax identification number.
-Specialty Occupation Defined
The petitioner must make a bona fide job offer in a "specialty occupation" position. A specialty occupation is an occupation that "requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor," and which ordinarily "requires the attainment of a bachelor's degree or higher in the specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States." The job offer must be a real, nonspeculative offer of employment based on the employer's actual need for the foreign national's services in the specialty occupation.
-Foreign Worker's Qualifications
The foreign national who is the subject of the H-1B petition must be "qualified to perform services in the specialty occupation because he or she has attained a baccalaureate or higher degree or its equivalent in the specialty occupation." To meet this criterion, the foreign national may
-Labor Condition Application as Prerequisite
No H-1B petition can be granted unless the U.S. Department of Labor ("DOL") first certifies that the employer has properly filed a "Labor Condition Application" ("LCA") with the DOL. The LCA contains a set of attestations relating to conditions of employment in the offered position. This process imposes a set of further specific substantive and record-keeping requirements on the petitioning employer which have as their main purpose to guarantee that employment of H-1B workers will not adversely affect U.S. workers in the same occupation. These requirements are as follows:
--Filing the H-1B Petition
The petition is filed with one of four Immigration Naturalization Service ("INS") regional service centers in Vermont, Nebraska, Texas, or California. It must usually be filed with the service center with jurisdiction over the intended location of employment. The petition package must include INS Form 1-129 and its H Supplement, the INS Form 1-129W the certified LCA, various categories of supporting documentation to establish the substantive requirements outlined above, and certain documents relating to the foreign national's status if he or she is already located in the U.S.
-Receipt of H-1B Status
The petition approval is not a visa, nor does it automatically grant authorization for a foreign national to begin work. If the foreign national is outside the U.S., then he or she must be inspected and admitted to the U.S. in H-1B status, which for all but Canadians requires an H-1B visa to be issued from a U.S. consulate abroad. If the foreign national is already in the U.S. in a different nonimmigrant status or in H-1B status with another employer, then he or she must be specifically granted a change to H-1B status or an extension or amendment of any existing H-1B status in order to hold the employment. Under the concept of "H-1B portability," though, if the foreign national is in the U.S. and holds or has previously held H-1B status and meets certain other conditions, then he or she may begin working for the new employer upon the filing of a new H petition, pending its outcome.
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 www.lawcatalog.com or by calling 800-537-2128, ext. 9300.
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