Under the immigration law, “Specialty Occupation” is defined as an occupation that requires:

(i) theoretical and practical application of a body of highly specialized knowledge; and
(ii) 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 U.S.

H-1B application is filed by the employer for the alien employee. As such, the employer is the applicant, and the alien employee is the beneficiary of the application.

Determining Job Title and Prevailing Wage.

The application composes three steps. The first is to decide the appropriate title for the job offered, the description of the job, and the so-called "prevailing wage". The prevailing wage is the average salary offered to the U.S. workers of similar job in the same geographic area. There are different sources of prevailing wage for H-1B application purposes that are acceptable to the USCIS. According to the Omnibus Appropriation Act for FY 2005 signed into law by President Bush in December 8 of 2004, the wage employer actually pays to the alien employee can no longer be lower than the prevailing wage. The previous 5% adjustment allowable to the prevailing wage is no longer applicable. Further, the Act also mandates that where the DOL (Department of Labor) uses or makes available to employers a governmental survey to determine prevailing wage, such survey shall provide 4 levels of wages commensurate with experience, education, and the level of supervision.

Labor Condition Application. The second step is Labor Condition Application ("LCA"). All H-1B petitioning employers must file a LCA with the U.S. Department of Labor. In the LCA the employer attests to the U.S. government that

(i) the employer will pay the employee at least the local prevailing wage or the employer’s actual wage, whichever is higher. The employer also attests that the employer will offer the alien employee benefits on the same basis as that offered to U.S. workers.
(ii) the working conditions for the H-1B worker will not adversely affect the working conditions of other workers similarly employed.
(iii) there is no strike, lockout, or work stoppage in the course of a labor dispute; and
(iv) the employer will notify union or to workers at the place of employment about the employment.

The purpose of LCA is multiple. It makes sure that the working opportunity and condition of the U.S. workers are not damaged by the employment of the alien employee by the same employer. I also makes sure that the alien worker will not be taken advantage of by the employer through offering less favorable working condition and compensation.

Without a certified LCA in file, the H-1 application will not be approved.

Application to USCIS.

The third step is filing the application to the USCIS. Upon receiving the application, the USCIS will issue an I-797 receipt to the applicant. Depending on the service center to which the application is filed, the processing time for the application ranges between approximately 45 days to 120 days.

Documents required for H-1B application constitutes two parts. The first is those of the alien employees, and the second of the employers.

Documents of the Alien Employee. The documents required of the alien employee include:

- copy of passport
- copy of previous visa
- copy of other document showing legal status, e.g. practical training card, or previous H-1B approval, or other change of status approval
- copy of diploma, or college-degree equivalence evaluation
- copy of transcripts

Documents of the Employer.

The documents required of the employer vary depending on the size of the employer. The documents provided must show the nature of the employer's business, and the financial capability of the employer to sponsor the application and the employment. As such, if the employer is of large-scale, a company brochure probably is sufficient. For smaller companies, the documents may compose of certificate of incorporation, articles of incorporation, financial statements, bank statements, fliers, advertisement, and contract with customers, etc.

General Rule in Job Change.

In the past, if an alien employee changes job, he can not work for the new employer unless he has obtained a new H-1B approval for the new job. In the real world, such restriction certainly created much inconvenience and confusion. Now, an alien employee can start working for a new employer as far as the H-1B application has been filed by the new employer and has been received by the USCIS. Starting from October 17, 2000, The American Competitiveness in the Twenty-First Century Act, (AC21) provides that a person who was previous issued an H-1B visa or provided H-1B non-immigrant status may begin working for a new H-1B employer as soon as the new employer files a "non-frivolous" petition on the non-immigrant's behalf. However, the premise to the portability of the H-1B is that the new H-1B petition for new employment must be filed before the expiration of the previous H-1B period, and the H-1B holder must have not been employed without authorization since entering the U.S.

Laid Off.

If the alien employee was laid off by the employer and is temporarily out of job, however, the rule is different. According to immigration law, an alien loses his H-1B status immediately after he is laid off. Nevertheless, due to the economic downturn and the prevalence of the problem, the USCIS has indicated that it will adjudicate the situation on a case by case basis. USCIS indicates that they have never deported H-1B holders who were laid off. However, that does not mean all application for new H-1B of aliens will be granted especially if the alien has been out of work for a lengthy period of time. Accordingly, quickly finding a new job and filing a new H-1B application will be crucial for the laid-off alien to get back to the legal status.

Extension Application.

If the granted admission is about to expire, the H-1B holder must file the extension application within the six-year period. Unless the employment has substantially changed, the extension application shall be similar to the original application.

If an alien intends to work for more than one employer, each of the employers has to file an H-1B application and obtain H-1B approval before the alien can legally work for the employer.

Multiple H-1B application is nothing special except that there is a different rule in the way of determining the prevailing wage. Much of the information provided in this section applies to multiple H-1B application.

(15-DAY PROCESSING)

From July 2001 a "Premium Process Program" is implemented for speeding processing of certain non-immigrant employment-based applications. Under this program, if the applicant is willing to pay an additional $1,000.00 "premium" to the USCIS, the USCIS will process the application within 15 days after its receipt of the application. The applicant will receive either an approval or a Request for Additional Evidence within 15 days after USCIS receives the application. If the application is eventually rejected, the USCIS will refund the paid premium.

Currently, this program applies to visa types like H-1, L-1, E-2, and O-1 applications. Certainly, for those who need to obtain the status within a short period of time, it has provided a very convenient route.

Spouse and children under 21 of H-1B can obtain H-4 status and stay in the U.S. with the principal. The H-4 status is dependent on the effectiveness and validity of the H-1's.

However, different from the H-1B status holders, people in H-4 status are not allowed to work. Accordingly, if the spouse of an H-1 wishes to work, he/she will have to obtain his or her own employment-based temporary status.

Currently, H-1B applications are subject to an annual quota cap of 65,000 (an additional 20,000 was created at the end of 2004 for applicants with master or higher degree obtained in the U.S. Further discussed below). The quota is counted toward the fiscal year starting from October 1 of each year, ending on September 30 of next year. Applicant can file the application within 180 days before the quota becomes available, making April 1 of each year the first day an applicant can file the application for the quota available on October of the same year.

However, not all H-1B applicants are subject to the annual cap. To sum it up, the following three groups of applicants are not subject to the quota cap:

(i) People already in H-1B status and is applying to extend H-1 either through working with same employer or with new employer, or is applying for a concurrent employment for a new job with a new employer;
(ii) H-1B applicants who are sponsored by institutes of higher education, for example colleges or universities, or a related or affiliated nonprofit entity, government or nonprofit research organizations;
(iii) H-1B applicants who previously was in H-1B within the past six years, the previous H-1B was subject to the quota cap, he/she changed to other status, and is now applying to change back to H-1B.

The Omnibus Appropriation Act for FY 2005 signed into law by President Bush in December 8 of 2004 modifies INA ∫214(g)(5) to include among the classes of H-1B exempted aliens an alien who has earned a Master's or higher degree from a U.S. institution of higher education. This exemption is capped at 20,000 per fiscal year. As the Act will not become effective until 90 days after the signing, application under this new legislation will not be approvable until March 8, 2005. At the time this article is updated, the USCIS has not released regulation for the application under the new legislation. However, the USCIS has indicated that the application under this part of the Omnibus Appropriation Act will be centralized for processing, probably at Nebraska Service Center.

In addition to allowing applicant to work for new employer immediately after filing a new H-1B application, the most important provisions of The American Competitiveness in the Twenty-First Century Act (AC21) are those enabling H-1B holder to apply for extension after the six-year period in H-1B.

One Year Extension

Under AC21, H-1B holders can apply for extension of H-1B status one-year at a time after the six-year period if:

(i) the H-1B holder is the beneficiary of an employment based (EB) immigrant petition (I-140) or an application for Adjustment of status; and
(ii) 365 days or more have passed since the filing of a labor certificate application that is required for the alien to get employment-based green card, or 365 days or more have passed since the filing of the I-140 employment-based immigrant petition.

AC21, however, does not clarify whether a person can apply for the one-year extension if he has labor certificate application filed and pending for over one year. That issue has been addressed. Following the passage of AC21, the Congress in November of 2002 passed "21st Century Department of Justice Appropriations Authorization Act" (H.R. 2215). According to the Act, H-1Bs can extend H-1B one year at a time as far as the labor certificate is pending for over 365 days. The extension can be filed even if the labor certificate has not been approved.

Three-Year Extension

Under AC21, H-1B holders can apply for extension of H-1B status in three-year increment after the six-year period if:

(i) The H-1B holder has an approved I-140 but can not apply for adjustment of status because of per-country limits, i.e. employment-based immigrant visa priority date is not current.

The scenario a priority date is not current typically occurs to people from China or India only. For now, however, this is not a problem because all the employment-based priority date is current worldwide.

One of the most significant changes to H-1B applications from the Omnibus Appropriation Act is that it reenacted the ACWIA (American Competitiveness and Workforce Improvement Act of 1998) fee to be paid by employers to the U.S. government for the training of U.S. workforce. The Act not only reenacted the fee, but raised it to $1,500.00 for employers with more than 25 full-time employees ($750 if no more than 25 employees). Right after the President signed the Act, the fee has taken effect on December 8, 2004. Certain employers previously exempted from the fee, principally higher education institutions and non-profit research organizations, are still exempt from this fee.

The Act, however, also creates a Fraud Prevention and Detection Fee of $500.00 to new H-1 B or L classification applications or to petitions seeking to change a beneficiary's employer within those classifications. The new fee applies to all petitions filed to that effect on or after March 8, 2005.

The anti-fraud fee does not apply to amendment or extension of existing H-1B with same employers. Therefore, to the one in H-1B getting a new job, or applying for a new H-1B because of new employment with a higher-education institution or non-profit research organization, filing his application before March 8, 2005 can save $500.00!