How to apply for H-1B visa for employment?

While the New Year celebrations are still fresh in our mind, it maybe hard to believe that the annual H-1B visa filing season is just around the corner!  Every year during this period of time, we get many calls and inquiries from U.S. employers and foreign professionals and students about the H-1B program, which begins to accept applications on April 1st.  It is a good time to review the basic requirements of the H-1B employment visa program.

Rather than dwelling on the technical and legal requirements of the application process (which should be handled by experienced immigration lawyers), let's review the basic components of the H-1B visa program, namely, (1) a "specialty occupation",  (2) a qualified foreign national, and (3) an eligible U.S. employer.

Specialty Occupation
The H1B visa classification was created by the Immigration Act of 1990 for foreign workers in “specialty occupations” and for fashion models of “distinguished merit and ability.”  Most of the H-1B applications submitted are for specialty occupations.  H-1B employment can be either full-time or part-time. Employment must be temporary, although H-1B visa holder may have immigrant intent.

By definition, a specialty occupation is one that requires the theoretical and practical application of a body of highly specialized knowledge.  What this usually means is that a person needs to possess a bachelor’s or higher degree to enter the profession. Professional occupations such as software developers, engineers, researchers, financial professionals, accountants, dentists, etc., are examples of H-1B specialty occupations. Other fields such as marketing, management, linguistics, teachers, etc., are also eligible for the H1B classification as long as the position involved meets the definition of a specialty occupation.   To determine whether a job is a specialty occupation, USCIS does not look at the job title alone but also the underlying job duties.  It is therefore very important for the employer to clearly define the job duties.

Foreign National's Qualifications
To be classified as an H-1B professional worker, a foreign applicant generally needs to demonstrate that he or she possesses the equivalent of a U.S. bachelor’s degree required for the profession. However, one may also qualify for an H-1B position by possession of a state license for the occupation.  Sometimes, a foreign national may possess a degree that is not directly related to the H-1B position.  In these situations, one may use a combination of education, training or experience to prove equivalency.  Depending on the particular profession, sometimes a few years of progressively responsible professional experience alone may be sufficient for H-1B employment.

The H-1B Employer
Generally speaking, any U.S. employer with a valid federal tax ID number may file an H-1B petition on behalf of a foreign national.  The employer can be a sole proprietor, a partnership, a corporation, a limited liability company, or any other valid corporate entity.  Self employment is not a basis for H-1B status. However, it may be possible for a corporation to petition for it's sole owner who is also the sole employee. Even so, small companies and start-ups may have difficulties getting their H-1B petitions approved for reasons such as lack of financial ability.

The employer must also attest in the Labor Condition Application that (1) the H-1B employee will be paid fair market wages, (2) H-1B employment will not adversely affect the working conditions of other workers, (3) no strike or lockout in the place of employment, and (4) notice of the H-1B petition has been provided to union bargaining representatives or posted at the job site.

Recently, the issue of "employer-employee" relationship has been in the spotlight in the H-1B adjudication process.  In addition to paying the salary and administering the benefits, an H-1B employer must prove that it has the ability to hire, terminate, evaluate and control the employee.  Some IT consulting firms and employment placement agencies may find this requirement challenging as their employees are usually placed to work off-site at client locations.  However, with careful planning and sufficient documentation, it is possible to prove a valid employer-employee relationship even in those situations and have their H-1B petitions approved.

Conclusion
Demand for H-B visas is expected to be greater than supply this year again.  Therefore, it is extremely important to plan early to make sure that a complete and accurate H-1B petition can be properly filed in April.