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Temporary Workers in a Specialty Occupation (H-1B Visas)
     The H-1B visa category is a frequently-used method for U.S. employers to hire foreign nationals on a temporary basis. A U.S. employer using this program must attest that (1) the foreign national will be paid at or above the higher of the rate paid for a similar position at the employer's own offices and the prevailing rate paid by other employers in the geographic area; (2) employment of the foreign national will not "adversely affect" the working conditions of U.S. colleagues; (3) U.S. colleagues will be given notice of the professional's presence among them; and (4) there is no strike or lockout at the worksite. The employer must also demonstrate that the position requires a professional in a specialty occupation and that the intended employee has the required qualifications.
     As a general rule, to be considered a "specialty occupation" the position must require a bachelor's or higher degree (or foreign equivalent) in a specific specialty as a minimum requirement for entry into that occupation. The position must also require "theoretical and practical application of a body of highly specialized knowledge." If a foreign national has not completed a degree, experience may be substituted in a ratio of three years of work experience for each year of post-secondary education that is lacking, if the experience exhibits progressively more responsible positions relating to the specialty field.
     Before an employer can file an H-1B petition with USCIS, it must first file a Labor Condition Application ("LCA") with the Department of Labor ("DOL"), which reviews the LCA to ensure it is complete and there are no obvious inaccuracies. The employer must attest in the LCA, among other things, that it will pay the H-1B worker the higher of the actual wage the employer pays its other workers with similar experience and qualifications for the specific employment in question or the prevailing wage for that position in the area of intended employment. The prevailing wage may be determined by a request to the local employment service, by the use of an industry-standard survey or other published wage source, or by any other bona fide source of prevailing wage information for the area where the individual will be employed.
     On or before the date the LCA is filed, the employer must either notify its employees' collective bargaining agent of the LCA filing or, if there is no such agent, post notice of the LCA filing in at least two conspicuous locations at the employer's premises for ten (10) consecutive business days. The employer must also create a "public examination file" containing all of the documentation required by the DOL regulations regarding determination of prevailing and actual wages and the other attestations on the LCA for at least one year beyond the end of the period of employment specified on the LCA.
     The DOL has seven working days in which to review the LCA and determine whether to certify it. Once the LCA is certified, the DOL will return it to the employer or the employer's representative, who will file it together with the H-1B petition with the USCIS, along with a description of the position to be offered and the employer's normal educational requirements to be able to perform the position, a description of the duties to be performed and proof that the individual has the qualifications required to perform the position (including evaluation of a foreign degree, if necessary). If the foreign national is in the United States and is seeking change of status or is seeking to change employers within the H-1B category, evidence should also be presented that the foreign national is presently maintaining his or her nonimmigrant status, so that status can be changed or amended in the United States.
     If the foreign national is outside the United States, the approval of the petition will be cabled to the U.S. Consulate, where the foreign national will be required to apply for a visa. If the foreign national is in the United States in lawful status, he or she will be issued a new I-94, Departure Record, that documents the change of his or her status to H-1B for the petitioning employer. H-1B visas may be issued for a period of up to three (3) years, with extensions for a maximum of three additional years. Under the American Competitiveness in the 21st Century Act ("AC21"), some individuals will be eligible to extend their stay beyond the six-year maximum period of stay in H-1B status. An extension petition must be accompanied by a new certified LCA. If an employer dismisses an H-1B employee prior to the conclusion of his/her authorized period of employment, the employer is obligated to pay the return costs of transportation to the alien's last place of residence outside the U.S.
     Spouses and children under the age of 21 who are in the U.S. may apply for a change of status/extension at the same time. Family members who derive their nonimmigrant status from that of an H-1B nonimmigrant will be classified as H-4 nonimmigrants. H-4 nonimmigrants are not authorized to accept employment in the United States, but may attend school.
     Congress has established an annual quota for new H-1B visa holders. When the quota is reached, no H-1B petitions may be approved for a foreign national who does not hold H-1B status until the following fiscal year.

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