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H-1B Specialty (Professional) Workers
(from Department of Labor Web site)
Overview
The H-1B program allows an employer to temporarily employ a foreign worker in the U.S. on a nonimmigrant
basis in a specialty occupation or as a fashion model of distinguished merit and ability. A specialty
occupation requires the theoretical and practical application of a body of specialized knowledge and a
bachelor's degree or the equivalent in the specific specialty (e.g., sciences, medicine and health care,
education, biotechnology, and business specialties, etc…). Current laws limit the number of foreign workers
who may be issued a visa or otherwise be provided H-1B status to 65,000.
H-1B1 Program
Effective January 1, 2004, the H-1B1 program became available, allowing employers to request foreign
workers in the U.S. in a specialty occupation from Chile and Singapore. Current laws limit the number
of foreign workers who may be issued an H-1B1 visa to 6,800. For more information regarding H-1B1
petitions, see the
USCIS website
or Consular sections for Chile or Singapore.
E-3 Program
The Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami
Relief, 2005, P.L. 109-13, was signed by the President on May 11, 2005. The Act established a new
nonimmigrant visa category for Australian professionals seeking to work in the United States. The
Act provides for 10,500 new visas per fiscal year for Australian nationals seeking temporary work
in "specialty occupations," as defined under the H-1B provisions of the Immigration and Nationality
Act (INA).
The statute requires that sponsoring employers file a Labor Condition Application with the Department
of Labor (or DOL). To certify a position for E-3 status, the Department must find – and certify to the
Departments of Homeland Security and State – that the employer's attestations meet the requirements of
INA §212(t)(1), the section governing labor certifications for the H-1B1 program.
Validity Period
The H-1B and H-1B1 certification is valid for the period of employment indicated on the Labor Condition
Application (LCA), specifically the
Form ETA 9035E,
for up to three years. E-3 certification is valid
for a period of employment of up to two years.
A foreign worker can be in H-1B status for a maximum continuous period of six years. After the H-1B
expires, the foreign worker must remain outside the U.S. for one year before another H-1B petition
can be approved. Certain foreign workers with labor certification applications or immigrant visa
petitions in process for extended periods may stay in H-1B status beyond the normal six-year limitation,
in one-year increments. For more information on extended stay possibilities, see the USCIS website.
Extensions and renewals are allowed under the H-1B1 program; however adjustment of status to another
nonimmigrant category or to legal permanent residency is not permitted. Therefore one year increment
extensions, due to labor certification applications or immigrant visa petitions in process for
extended periods, do not apply to H-1B1 visa holders. The Department of State issues E-3 visas for
periods of employment up to two years. Although admission to the United States and extensions of
stay are both limited to 2-year increments, E-3 visas can be renewed indefinitely.
Qualifying Criteria
To hire a foreign worker on an H-1B, H-1B1, or E-3 visa, the job must be a professional position
that requires, at a minimum, a bachelor's degree in the field of specialization. The occupation
for which the H-1B, H-1B1, or E-3 classification is sought must also normally require a bachelor's
degree as a minimum for entry into the occupation.
Each employer seeking an H-1B, H-1B1, or E-3 nonimmigrant has several responsibilities:
- The employer shall submit a completed Labor Condition Application (LCA) on
Form ETA 9035E
in the manner prescribed by the regulations. By completing and signing the LCA, the employer agrees
to several attestations regarding an employer's responsibilities, including the wages, working
conditions, and benefits to be provided to the nonimmigrant.
-
The employer shall make the LCA and necessary supporting documentation available for public
examination at the employer's principal place of business in the U.S. or the place of employment
within one working day after the date on which the LCA is filed with ETA.
- The employer may then submit a copy of the approved LCA to U.S. Citizenship and Immigration
Services (USCIS) with a completed petition
(USCIS Form I-129)
requesting H-1B or H-1B1 classification.
For the E-3 visa, employers do not need to submit a petition to USCIS. Instead, foreign workers:
(1) apply for approval directly with a U.S. consulate; (2) pay a visa fee; and (3) are issued an
I-94 entry/exit document at port of entry, to function as their work authorization.
- The employer shall not allow the nonimmigrant worker to begin work until USCIS grants the
worker authorization to work in the U.S. for that employer or, in the case of a nonimmigrant who
is already in H-1B status and is changing employment, to another employer until the new employer
files a petition supported by a certified LCA.
- The employer shall maintain documentation to meet its burden of proof with respect to the
validity of the statements made in its LCA and the accuracy of information provided, in the
event that such statement or information is challenged. The employer shall also maintain such
documentation at its principal place of business in the U.S. and shall make such documentation
available to DOL for inspection and copying upon request.
Filing Process:
- H-1B, H-1B1, or E-3 statuses require a sponsoring U.S. employer; an individual cannot gain status
on his/her own. First, the employer completes preliminary actions prior to filing an application with
the DOL. It must determine the prevailing wage for the position using one of the following:
- Using a determination for the occupation and area issued under the Service Contract Act of the
Davis-Bacon Act;
- Using a rate set forth in a collective bargaining agreement;
- Requesting that a SWA prevailing wage determination be made;
- Using a survey conducted by an independent authoritative source; or
- Using another legitimate source of information.
The employer must also inform U.S. workers of the intent to hire a foreign worker by posting the
completed LCA,
Form ETA 9035E,
for the position. The posting must occur within the 30-day period
preceding the date that the labor condition applications is submitted to the DOL. Posting may occur
in one of two methods: hard copy or electronic notice. The hard copy notice must be given to the
bargaining representative for workers in the occupation or, if there is no bargaining representative,
be posted for 10 consecutive days in at least two conspicuous locations at each place of employment
where any H-1B, H-1B1, or E-3 nonimmigrant will be employed. Distribution can be by whatever means
the employer normally communicates with its employees (i.e., e-mail, bulletin board, and home web page).
A copy of the LCA must also be provided to each nonimmigrant.
LCAs must be submitted electronically via the Department’s
LCA Online System.
It is important to read
the Online Help Section "Getting Started" before completing and submitting an LCA. The online help
provides step-by-step instructions for completing and submitting LCA's electronically. The LCA Online
System is available at:
www.LCA.doleta.gov.
Employers submitting LCAs via the LCA Online System can expect a response in minutes or, in the case
of a question regarding the prevailing wage source, within seven working days. Assistance in
electronically filing LCA's may be obtained by contacting
LCAHelp@dol.gov.
Employers with physical disabilities that prohibit them from filing electronic applications may submit
a written request to file their labor condition applications via U.S. mail. Such requests must be made
prior to submitting an application and should be addressed to:
Chief, Division of Foreign Labor Certification
Department of Labor
Room C-4312
200 Constitution Avenue, NW
Washington, DC 20210
- LCA's will be returned not certified to the employer or the employer's authorized agent
or representative when either or both of the following two conditions exist:
- When Form ETA 9035E is not properly completed. Examples of not properly completing Form ETA 9035
or Form ETA 9035E include instances of the following:
- Where the employer has failed to mark the attestations;
- Where the employer has failed to state the occupational classification, the wage rate,
period of intended employment, or prevailing wage; or
- Where the application does not contain the signature of the employer or the employer's
authorized agent or representative (applicable only to those applications submitted via U.S. Mail).
- When Form ETA 9035 or
Form ETA 9035E
contains obvious inaccuracies. Examples of obvious
inaccuracies are shown below:
- The employer files an application in error;
-
The Administrator, Wage and Hour Division, Employment Standards Administration
has notified
ETA in writing that the employer has been disqualified from employing H-1B or H-1B1 nonimmigrants
under section 212(n) of the INA
- Stating a wage rate below the Fair Labor Standards Act's minimum wage;
- Submitting an LCA earlier than six months before the beginning date of the period of
intended employment;
- Identifying a wage rate which is below the prevailing wage listed on the LCA; or
- Identifying a wage range where the bottom of the range is lower than the prevailing
wage listed on the LCA.
- If the LCA is returned for correction, the employer may correct or resubmit their original
application. Any resubmissions will be processed as if they are new requests (first come, first
served basis).
- Upon DOL certification, the employer files the
USCIS Form I-129,
the required filing fee, and
other supporting documentation (including the approved LCA) to USCIS. Unless specifically exempt
under the law, the employer must pay USCIS filing fees.
- Employers must keep the LCA in its public file and provide a copy to workers for whom the LCA
supports their visa.
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