Are you interested in working in the U.S. as a professional? Do you have a job offer from a U.S. employer? If so, you may qualify for H-1B nonimmigrant status.

The H-1B category is designated for temporary professionals to work in the U.S. in a “specialty occupation.” In general, “specialty occupation” is defined as a position that requires at least a Bachelor’s degree. Fashion models of distinguished merit and ability may also qualify for H-1B status.

Each year, Congress limits the number of H-1B nonimmigrant admitted to the U.S. The H-1B “cap” for Fiscal Year 2011, which begins October 1, 2010, is 65,000.   However, an additional 20,000 H-1B visas are set aside toward a Masters Cap.  The Masters Cap is available to petitioners who hold a Master’s degree or higher from a U.S. academic institution and meet all of the other criteria for an H-1B visa.

Prerequisites to filing an H-1B petition

1) Prevailing Wage Determination
Employers or their representatives (attorneys) must obtain a prevailing wage prior to submitting an H-1B or H-1B1 application from one of three sources: (1) request that a prevailing wage determination be issued by the Department of Labor through their iCert portal electronic submission website; (2) use a survey conducted by an independent authoritative source; or, (3) use another legitimate source of information such as the Online Wage Library.

2) Labor Condition Application
The second step to hiring an H-1B worker is filing a Labor Condition Application (LCA) with the Department of Labor (DOL). A certified LCA is a required component of any H-1B petition.

Some terms and conditions of the H-1B classification:

Work authorization for H-1B foreign specialty workers is employer-specific (i.e. limited to employment with the approved employer/petitioner).
A change of employer requires a new H-1B petition; under some circumstances, a nonimmigrant who was previously issued an H1-B visa or provided H1-B nonimmigrant status may begin working for a new H1-B employer as soon as the new employer files a “nonfrivolous” H1-B petition for the nonimmigrant.
Multiple employers require multiple H-1B petitions.
The employer is responsible for return transportation costs for an employee terminated prior to the end of the approved period of employment.
H-1B foreign specialty workers are not required to maintain foreign residence and may seek permanent residence in the U.S.

Dependents

Dependents (spouses and unmarried children under 21 years of age) of H-1B workers are entitled to H-4 status with the same restrictions as the principal. Dependents may not be employed under the H-4 classification.

Including more than one worker in a petition

Each petition may only include one worker.

H-1B1 Specialty Occupations

The H-1B1 category applies to an alien coming temporarily to perform services in a specialty occupation which requires the theoretical and practical application of highly specialized knowledge requiring completion of a specific course of higher education.
Document Requirements for H-1B Classification Petition
The petition (Form I-129) should be filed by the U.S. employer with:

  1. A certified labor condition application from the Department of Labor;
  2. A letter of support from the employer;
  3. Copies of evidence that the proposed employment qualifies as a specialty occupation;
  4. Evidence the alien has the required degree by submitting either: a copy of the person’s U.S. baccalaureate degree or higher degree which is required by the specialty occupation OR a copy of a foreign degree determined to be equivalent to a U.S. degree OR copies of evidence of education and experience determined to be equivalent to a relevant U.S. baccalaureate degree;
  5. A copy of any required license or other official permission to practice the occupation in the state of intended employment; and
  6. A copy of any written contract between the employer and the alien or a summary of the terms of the oral agreement under which the alien will be employed.

H-1B2 Research and Development Project

The H-1B2 category applies to an alien coming temporarily to perform services of an exceptional nature relating to a cooperative research and development project administered by the Department of Defense.

Petition Document Requirements

The petition (Form I-129) must be filed by the U.S. employer and must be filed with:

  1. A description of the proposed employment and evidence the services and project meet the above conditions; and
  2. A statement listing the names of all aliens who are not permanent residents who have been employed on the project within the past year, along with their dates of employment.Note: this category does not require an LCA.

H-1B3 Fashion Model

The H-1B3 category applies to a fashion model who is nationally or internationally recognized for achievements, to be employed in a position requiring someone of distinguished merit and ability.  The employment must involve an event or production which has a distinguished reputation; or the services of the model are as participant for an organization or establishment that has a distinguished reputation or record of employing persons of distinguished merit and ability.

Petition Document Requirements

The petition (Form I-129) should be filed by the U.S. employer with:

  1. A certified labor condition application from the Department of Labor;
  2. Copies of evidence establishing that the alien is nationally or internationally recognized in the field of fashion modeling.

The evidence must include at least two of the following types of documentation which show that the person:

  1. Has achieved national or international recognition in his or her field as evidenced by major newspaper, trade journals, magazines or other published material;
  2. Has performed and will perform services as fashion model for employers with a distinguished reputation;
  3. Has received recognition for significant achievements from organizations, critics, fashion houses, modeling agencies or other recognized experts in the field; and
  4. Commands a high salary or other substantial remuneration for services, as shown by contracts or other reliable evidence.
  5. Copies of evidence establishing that the services to be performed require a fashion model of distinguished merit and ability and either:

Please contact our office immediately if you seek to work in the U.S. in a professional position.
Page Summary: The H-1B visa is a temporary visa for workers in specialty occupations.