Specialty Occupation Worker
(H1B Visa)

The H1B visa allows a U.S. employer to temporarily hire foreign workers to perform services in a specialty occupation. It allows foreign nationals a path to permanently reside in the U.S.

A specialty occupation (H1B visa) requires highly specialized knowledge and skills and a bachelor’s degree (or foreign equivalent) in a specific field of study.

Typical occupations qualifying for H1B visa status include professions, which are defined by INA §101(a)(32) to include architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries.

If you need help with an H1B visa, contact us today. The experienced immigration attorney at Columbus, Ohio-based Porter Law Office, LLC has in depth experience with securing H1B visas.

Columbus, Ohio Immigration Lawyer H1B Visa Representation

Establishing Eligibility for the H1B Visa

The principal issues in any H1B case are whether the job is specialty occupation and whether the foreign national has the required credentials. The Department of Labor (DOL) plays a critical role in the H1B visa process. But the United States Citizenship and Immigration Service (“USCIS”) is the agency ultimately responsible for adjudicating H1B visa petitions. To meet the federal rules and regulations, the H1B worker must demonstrate that he or she has the education, experience, and skills required for the minimum qualifications of the position.

In addition, the employer must submit demonstrative evidence. It must prove that the position qualifies as a specialty occupation. And, it must establish that the worker has the required qualifications. The employer must also satisfy strict DOL laws by attesting to numerous working conditions and paying the prevailing wage or higher to the H1B worker.

What is a Specialty Occupation?

In determining whether an employer can hire a foreign national for temporary H1B visa work, it is critical to determine whether the position qualifies as an H1B visa “specialty occupation.” Generally, a specialty occupation requires highly specialized knowledge and skills and a bachelor’s degree or foreign equivalent in a specific field of study.

The Immigration and Nationality Act (the “INA”) defines specialty occupation as “an occupation that requires (a) theoretical and practical application of a body of highly specialized knowledge, and (b) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” See INA § 214(i)(1).

The regulations at 8 CFR §214.2(h)(4)(iii)(A) set forth four factors that can be used to prove that an employer is hiring the foreign national into a “specialty occupation.” To qualify for the H1B visa, the job must meet one of the following criteria to qualify as a specialty occupation:

1. a baccalaureate or higher degree or its equivalent is normally the minimum requirement for the position;
2. the degree requirement is common to the industry in parallel positions among similar organizations;
3. the employer normally requires a degree or its equivalent for the position; or
4. the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

There are numerous occupations that potentially qualify as specialty occupations. The employer must prove through objective evidence that the job offered falls within the statutory and regulatory definitions set forth above.

What is a Labor Condition Application (LCA)?

The LCA is a document that an H1B employer files with the Department of Labor’s Employment and Training Administration (ETA) before filing an H1B petition. The LCA contains information about the proffered position, including the job occupation, wage, area of intended employment, the name of end client, duration of employment, etc. It also contains important attestations with which the employer must comply or be subject to civil or criminal penalties.

Before the LCA can be used in the H1B petition, a Certifying Officer with the Department of Labor must certify it under the provisions of 20 C.F.R. §655.740.

Employers now submit the LCA to the DOL through the FLAG system. If everything on the LCA is complete and accurate, the Certifying Officer will certify it within seven business days of the date the LCA was received. Once certified, the employer can proceed to file the H1B petition.

Period of Permitted Stay on H1B Visa

An H1B visa is valid initially for up to three years. An employer may request an extension up to a maximum total stay of six years. There are exceptions, which are discussed below. After the period of permitted stay on H1B visa has expired, the worker must leave the United States. The worker must remain outside the U.S. for at least one year before becoming eligible for a H1B status again.

Exemptions from the Six-year Limit

The American Competitiveness in the Twenty-First Century Act of 2000 Public Law 106-313, as amended (“AC21”) provides an exemption from the six-year H1B visa limit. Under AC21, an H1B worker may obtain an extension beyond the six-year limit provided the following are true. The worker is the beneficiary of an approved employment-based petition (Form I-140). The worker is eligible for adjustment of status (Form I-485), but cannot file because of the per-country limits. Under such circumstances, the worker may obtain extensions of their H1B visa until the adjustment of status case is decided.

If you have reached your maximum six-year H1B visa limit, you can obtain an extension of H1B status while you wait for your priority date to become current.

H1B Visa Transfers and AC21

Another significant benefit of AC21 is that it allows an H1B worker to immediately change employers. Under AC21, an H1B worker may change employers upon that new employer’s filing of the H1B petition. Changes in the terms and conditions of the H1B employment include a change in job title, duties, reduction in salary, change of number of hours, new employment location outside of the MSA, new employer, etc.

In the past, an H1B worker had to wait until a new H1B petition was approved to change jobs. AC21 allows a change upon the filing of a new H1B petition. In any transfer, you are required to prove you were maintaining H1B status when you extend your visa or change jobs from one employer to another.

The 60-Day H1B Grace Period

Before January 2017, there was no grace period for H1B employees to prepare to depart the U.S. after the H1B status expires. The last date you could be present in the U.S. is the date indicated on the I-94 card or on the end date on the H1B approval notice (whichever is later). For more information, see the old H1B FAQs addressing common issues for terminated H1B workers.

Due to the amendment of 8 C.F.R. 214.1(i)(2), if you are terminated before your H1B status expires, you now have a grace period for up to 60 consecutive days, or until the existing validity period ends, whichever is shorter. The individual may not work during the 60-day grace period, but they may port to another H1B employer. The relevant text of the regulation is below:

8 CFR 214.1(l)(2). (l) Period of stay. (2) An alien admitted or otherwise provided status in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classification and his or her dependents shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment on which the alien’s classification was based, for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period. DHS may eliminate or shorten this 60-day period as a matter of discretion. Unless otherwise authorized under 8 CFR 274a.12, the alien may not work during such a period.

H1B Visa Transfers Allowed During Grace Period

The final rule at 8 CFR 214.1(l)(3) makes clear that during the 60-day grace period the nonimmigrant worker may apply for and, if otherwise eligible, be granted an extension of stay or change of status. The beneficiary may also commence employment under H1B portability (AC21) per 8 CFR 214.2(h)(2)(i)(H), if otherwise eligible.

This 60-day grace period further supports AC21’s goals of providing improved certainty and stability to nonimmigrants who need to change jobs or employers. The 60-day grace period would provide needed flexibility to qualifying nonimmigrants who face termination of employment prior to the end of their petition validity periods. The grace period, for example, allows such nonimmigrants to remain in the United States without violating their status and potentially obtain new job offers from employers that seek to file new nonimmigrant petitions, and requests for an extension of stay, on their behalf. In such cases, even though prior employment may have terminated several weeks prior to the filing of the new petition, DHS may consider such an individual to have not violated his or her nonimmigrant status and allow that individual to extend his or her stay with a new petitioner, if otherwise eligible. If the new petition is granted, the individual may be eligible for an additional grace period of up to 60 days in connection with the new authorized validity period.

Items to Consider When Departing U.S.

If your H1B status is terminated before the expiration of your H1B visa validity period, you should consider the following:

1. Transfer your H1B visa to another company—comments to the amended regulations prohibit work during the transfer period, so you must wait until USCIS approves the transfer to start work
2. Leave the U.S. At that point, you will be required to give up your Form I-94 at the border when you leave the U.S.
3. It is recommended to maintain your resignation letter to memorialized your last date of employment.
4. When you leave the U.S., request a stamp at the border to prove your departure (or, if you cannot get a stamp in the U.S., be sure to get one from the country where you enter).
5. If you plan to return to the U.S., be sure to have evidence of your foreign residency for the period when you resided abroad.
6. You will need to file U.S. tax return for the most recent tax year and likely the next year. Contact Porter Law Office, LLC for more information on your federal tax filing requirements.

H1B Visa Stamping Process

If you received an approved I-129 with consular notification (as opposed to a change of status approval) or you travel abroad and do not have a valid visa to return to the U.S., you will need to get a visa stamped in your passport. The H1B visa stamping process can be as simple as completing the web-based application online, paying the fees, scheduling the appointments at the U.S. embassy or consulate abroad, gathering the required documentation (see below), and sitting for the actual H1B visa interview.

U.S. law generally requires visa applicants to be interviewed by a consular officer at a U.S. embassy or consulate. After relevant information is reviewed, the application is approved or denied, based on standards established in U.S. law.

In some cases, H1B workers can be required to undergo administrative processing involving lengthy background checks. These situations generally arise when the worker did not fully complete the visa application and/or provide all required supporting documentation. See INA section 221(g).

Since embassies and consulates typically require an appointment, you may need to schedule yours several weeks in advance. You should verify your embassy’s procedures, paperwork, and fees in advance by visiting the website for the consulate at which you will be applying for the visa. Finally, it is strongly encouraged that you apply for the visa in your home country as the U.S. government discourages foreign nationals from applying at consulates in third countries. If you do so, you may have to wait longer than normal for your visa.

Applications for H1B visa stamping will need:

• Original H1B Approval Notice (I-797)
• Petition related documentation (the I-129, H1B Petition packet) with all supporting documentation establishing your eligibility for the H1B visa
• Passport (valid at least 6 months into the future)
• The web-based H1B visa application (Form DS-160) confirmation page.
• Visa fee
• Passport-sized photograph
• Fees, additional forms and/or documents as required by the consulate at which you will apply.

For more information on getting an H1B visa, review the U.S. Department of State’s temporary worker visa page.

Dependents on H-4 Visa

Family members accompanying you to the U.S. should apply for H-4 dependent visas. The H1B visa holder’s spouse and minor children may apply for an H1B dependent visa. You will need to present proof of the relationship to the H1B (marriage certificate and birth certificates) to the consulate officer at your H-4 interview, along with all other consulate required information.

Guidance for H1B Fees

Any employer who utilizes the H1B visa program to supplement its workforce needs to understand the rules regarding the payment of the various H1B fees. First, what are the fees? Can an H1B worker pay the fees associated with the H1B petition? Can the employer impose a penalty on the worker if it pays for the H1B visa and the worker quits?

If you need assistance with an an H1B visa, contact the business immigration lawyer at Porter Law Office, LLC in Columbus, Ohio today.

Employer v. Employee Fees for H1B Visa

A good starting place regarding H1B fees is the Department of Labor Fact Sheet #62H. This fact sheet states that an H1B worker cannot pay fees and costs associated with the H1B visa application if doing so would reduce an H1B worker’s pay below the required wage rate. See 20 C.F.R. § 655.731(c)(9).

But there are certain fees that an H1B worker can never be required to pay. These include a penalty for the worker’s failure to complete the full employment period, the training and processing fee imposed by USCIS, and the $500 fraud protection and detection fee. See I.N.A. § 212(n) and § 214(c).

With regards to the payment of H1B fees, it is a best practice to advise clients in a manner that protects the employer in the event of a Department of Labor audit or on-site visit. Accordingly, an employer should not require that the H1B worker pay any fees and costs associated with the H1B visa process, including attorney’s fees, expenses, and premium processing fees. The total H1B visa fee depends on the type of case.

Fees for Filing an H1B Visa

H1B Visa Cap Petition

The government filing fees for filing a cap subject H1B petition include: $460 base fee for the I-129 (as of December 23, 2016), the ACWIA fee ($750 for employers with 25 or less full time employees and $1,500 if there are more than 25 employees), and the $500 Fraud Prevention and Detection Fee.

The following organizations are not required to pay the ACWIA fee:

• An institution of higher education as defined in section 101(a) of the Higher Education Act of 1965;
• A nonprofit entity that is related to or affiliated with an institution of higher education, as defined in section 101(a) of the Higher Education Act of 1965;
• A nonprofit research organization or governmental research organization;
• A primary or secondary educational institution; or
• A nonprofit entity which engages in an established curriculum-related clinical training program for students.

The ACWIA fee is also not required when:

• A petitioner files its second or subsequent request for an extension of stay with the same employer for a foreign worker;
• A petitioner files an amended petition that does not contain any requests to extend the validity of the petition it seeks to amend; or
• A petition is filed solely to correct a USCIS error. To be considered exempt from the ACWIA fee, however, such petition may not contain any requests to extend the validity of the petition it seeks to correct, unless the USCIS error involves the validity dates.

Plus a $4,000 fee for H1B petitioners that employ 50 or more employees in the United States if more than 50 percent of these employees are in H1B, L-1A or L-1B nonimmigrant status. PL 114-113 was signed into law Dec. 18, 2015, and is valid until Sept. 30, 2025. The fee is applicable for petitions filed on or after Dec. 18, 2015.

The additional fee under Public Law 114-113, if otherwise applicable, is required when the Fraud Prevention and Detection Fee is also required. As such, petitioners subject to the new fee must submit the fee with an H1B or L-1 petition filed:

• Initially to grant status to a nonimmigrant described in subparagraph (H)(i)(b) or (L) of section 101(a)(15) of the Immigration and Nationality Act; or
• To obtain authorization for a nonimmigrant in such status to change employers.

Optional $2,500 premium processing fee. Annual cap is 65,000. Applications are accepted six months prior to the start of the fiscal year. April 1 is the earliest an application can be submitted for an October 1 start date.

For filing an H1B visa application, contact the experienced H1B visa and immigration lawyer at Columbus, Ohio based Porter Law Office, LLC today.

H1B Extension or Renewal

The government filing fees for filing an H1B extension or renewal include: $460 base fee for the I-129, and occasionally the ACWIA fee ($750 for employers with 25 or less full time employees and $1,500 if there are more than 25 employees).

 The following organizations are not required to pay the ACWIA fee:

• An institution of higher education as defined in section 101(a) of the Higher Education Act of 1965;
• A nonprofit entity that is related to or affiliated with an institution of higher education, as defined in section 101(a) of the Higher Education Act of 1965;
• A nonprofit research organization or governmental research organization;
• A primary or secondary educational institution; or
• A nonprofit entity which engages in an established curriculum-related clinical training program for students.

The ACWIA fee is also not required when:

• A petitioner files its second or subsequent request for an extension of stay with the same employer for a foreign worker;
• A petitioner files an amended petition that does not contain any requests to extend the validity of the petition it seeks to amend; or
• A petition is filed solely to correct a USCIS error. To be considered exempt from the ACWIA fee, however, such petition may not contain any requests to extend the validity of the petition it seeks to correct, unless the USCIS error involves the validity dates.

Optional premium processing fee. The earliest that an extension or renewal can be applied for is 180 days prior to the expiration of the current H1B visa.

H1B Visa Transfer

An H1B visa transfer petition takes approximately 2-3 months for USCIS approval. The H1B employee may work for the new company upon filing of the H1B visa transfer petition with USCIS. They do not have to wait for the receipt notice Form I-797 or USCIS approval, see Section 105 AC21.

The government filing fees for filing an H1B transfer petition include: $460 base fee for the I-129, the ACWIA fee ($750 for employers with 25 or less full time employees and $1,500 if there are more than 25 employees), and the $500 Fraud Prevention and Detection Fee.

 The following organizations are not required to pay the ACWIA fee:

• An institution of higher education as defined in section 101(a) of the Higher Education Act of 1965;
• A nonprofit entity that is related to or affiliated with an institution of higher education, as defined in section 101(a) of the Higher Education Act of 1965;
• A nonprofit research organization or governmental research organization;
• A primary or secondary educational institution; or
• A nonprofit entity which engages in an established curriculum-related clinical training program for students.

Plus a $4,000 fee for H1B petitioners that employ 50 or more employees in the United States if more than 50 percent of these employees are in H1B, L-1A or L-1B nonimmigrant status. See PL 114-113. Optional: premium processing fee to process in 15 days. Form I-907 required. Not subject to the annual cap.

Why Hire an Immigration Lawyer?

H1B Visa Process is Complex

An immigration lawyer is instrumental in planning and executing. We help you ensure that your organization and the H1B worker meet their respective eligibility requirements under the relevant federal rules and regulations.

Our firm prepares the LCA, the forms, obtains relevant and probative evidence, filed the petition, creates the Public Access File, and monitors the case until it is approved.

Today more than ever, your immigration lawyer must be your partner. As an experience immigration attorney, I will assist your hiring department efficiently complete the steps and materials required to obtain an approved H1B visa.

Porter Law Office, LLC has streamlined the H1B visa process. We will guide your organization and the worker with instructions to complete the process as effectively as possible. Review our H1B process and contact us today.