H-1B: Specialty Occupation Visa and Labor Condition Application – Immigration Law
H-1B Specialty Occupation Visas are reserved for individuals who seek temporary employment in the US, but one of the privileges of the H-1B is that it is a “dual intent” visa, which permits the employee to apply for a Green Card if a qualified employer or family member petitions for the H-1B holder. Our Sacramento immigration lawyers have represented companies and our office was 100% successful in obtaining H-1B’s in the last fiscal year (2015) and can assist you with your H-1B petition.
Who qualifies for an H-1B Specialty Occupation Visa?
The US employer must demonstrate: (1) the position offered to the prospective employee is in a specialty occupation that typically requires a minimum four-year university degree or equivalent; (2) the prospective employee meets the educational requirements necessary for the specialty occupation offered, which generally must be at least a bachelor’s degree or foreign equivalent; and, (3) the prospective employee is paid at the “prevailing wage,” as determined by the National Prevailing Wage Center.
What is a Labor Condition Application (“LCA”)?
The employer must attest to the US Department of Labor’s standards per Form ETA 9035/9035E, the Labor Condition Application (“LCA”). It is a prerequisite to H-1B approval that must be satisfied in order for the employer to employ the prospective nonimmigrant worker under the H-1B visa. One of the attestation requirements that need to be satisfied is that the H-1B worker is being paid the prevailing wage for the specialty occupation offered.
What are the attestation requirements that the employer must make for the Labor Condition Application (“LCA”)?
The employer must attest to the following:
(1)The prospective employee will be paid the higher of the actual wage rate that the employer pays other employees similarly situated, or at the very minimum, the prevailing wage for the occupation in the area of intended employment;
(2)There is no current strike or lockout involving the prospective employee at her workplace;
(3)The employment of the prospective employee with not adversely affect the working conditions of workers similarly situated to the prospective employee in the intended area of employment;
(4)A copy of the LCA, which includes the salary paid, position, and documentation of the basis for the prevailing wage will be held by the employer for public inspection;
(5)The employer will provide notice of the LCA to the collective bargaining representative, or if one does not exist, post the notice conspicuously at the work site for ten days on the date the LCA was filed or within 30 days before it is filed; and,
(6)The employer must agree to pay the alien the reasonable cost of transportation to return to his or her home country if the employer terminates the prospective employee’s employment prior to the authorized employment period.
Can my spouse and child (under 21) enter the United States as well? Are they subject to any limitations and can they change their status?
Yes, if you are an H-1B recipient, your spouse and child may become your dependents as an H-4 Visa beneficiary. There are limitations, including the inability to work unless otherwise authorized by USCIS. An H-4 Visa beneficiary can later change their status to other nonimmigrant statuses depending on whether they qualify, including the H-1B, B-1/B-2, F-1, etc.
What is the numerical cap for H-1B visas and when does the fiscal H-1B visa’s fiscal year begin?
H-1B visas are subject to a 65,000 per fiscal year numerical cap. The fiscal year begins on April 1st and numerical cap is usually exhausted within 1-2 weeks due to the overwhelming number of H-1Bs that are being filed every year. Thus, employers should consider preparing H-1B petitions at least 2 months in advance to prepare for the beginning of the fiscal year.
When can the employment for the H-1B holder begin and how long is the H-1B valid until?
Approved H-1B petitions may be approved for and may start at the earliest on October 1st of the year the H-1B is filed. They are typically valid for 3 years and can be extended for an additional 3 years. Post-6th year extensions are possible as well if certain requirements are met.
Our teams of Sacramento immigration attorneys recognize the importance of preparing a strong H-1B petition. Our immigration lawyers also understand that there is very little room for error due to the high demand for H-1Bs. Our immigration law firm is prepared to evaluate your case and make suggestions to maximize the possibility of obtaining an H-1B on behalf of your intended beneficiary.
Please do not hesitate to contact our immigration law firm, Carson & Kyung, A Law Corporation, to discuss the possibility of applying for the H-1B Specialty Occupation Visa and the requisite Labor Condition Application.
USCIS H-1B Visa Guide: http://www.uscis.gov/eir/visa-guide/h-1b-specialty-occupation/h-1b-visa