Professional Workers Serving in a Specialty Occupation Position

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 per fiscal year.

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 per fiscal year. For more information regarding H-1B1 petitions, see the USCIS website or Consular sections for Chile or Singapore.

E-3 Program
The July 19, 2005 Federal Register Notice, Vol 70, No 137 provided initial guidance for employers filing applications for certifications under the E-3 worker visa program. The E-3 program is for Australian professionals seeking to temporarily work in the United States. As explained in the Notice, 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).

Sponsoring employers are required to file a Labor Condition Application with the Department of Labor (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:

1. 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.

2. 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.

3. 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.

4. 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.

5. 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 Proces

1. 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:

   1. Using a determination for the occupation and area issued under the Service Contract Act of the Davis-Bacon Act;
   2. Using a rate set forth in a collective bargaining agreement;
   3. Requesting that a SWA prevailing wage determination be made;
   4. Using a survey conducted by an independent authoritative source; or
   5. 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 LCAs 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 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:

   Administrator, Office of Foreign Labor Certification
   Employment & Training Administration
   Department of Labor
   Room C-4312
   200 Constitution Avenue, NW
   Washington, DC 20210

2. LCAs 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:

   1. 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:
      
      

      1. Where the employer has failed to mark the attestations;
      2. Where the employer has failed to state the occupational classification, the wage rate, period of intended employment, or prevailing wage; or
      3. 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).

   2. When Form ETA 9035 or Form ETA 9035E contains obvious inaccuracies. Examples of obvious inaccuracies are shown below:
      
      

      1. The employer files an application in error;
      2. 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
      3. Stating a wage rate below the Fair Labor Standards Act's minimum wage;
      4. Submitting an LCA earlier than six months before the beginning date of the period of intended employment;
      5. Identifying a wage rate which is below the prevailing wage listed on the LCA; or
      6. Identifying a wage range where the bottom of the range is lower than the prevailing wage listed on the LCA.

   3. 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).

   4. 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.

   5. Employers must keep the LCA in its public file and provide a copy to workers for whom the LCA supports their visa.

Source: http://www.foreignlaborcert.doleta.gov/h-1b.cfm | Last accessed: February 7, 2009.

Information on this website is provided for information purposes only, and its presentation herein neither creates an attorney-client privilege nor constitutes legal advice.