- H-1B Cap Issues
- H-1B Cap Exemptions
- Timing Issues for Cap-Subject H-1B Visas
- Building Your Case for Extraordinary Ability
H-1B Visas & The H-1B Cap
What is an H-1B?
A U.S. employer can sponsor a foreign worker for H-1B status based on an offer of employment in a “professional specialty occupation” to any worker who holds an appropriate degree for the job offered, or a combination of education and progressive work experience in the specialty equivalent to the relevant degree.
A “professional specialty occupation” is defined by regulation as one that requires at least a 4-year Bachelor’s degree in an academic field directly related to the job duties, or its equivalent through education and experience combined, as a baseline minimum for entry-level employment in that occupation. To qualify as an H-1B position, that related-degree requirement must normally apply both to the occupation in general, and to the specific position or job title at the sponsoring employer. Examples of jobs that normally require a directly-related Bachelor’s or higher degree as a minimum for entry-level employment in the professional occupation across all types of employers include engineers, graphic designers & financial analysts. Examples of jobs that clearly do NOT qualify for H-1B classification include real estate brokers, and sales positions across all industries.
Degree Equivalency: Foreign degrees must be evaluated by a U.S.-based credentials evaluation service to determine whether they are equivalent to a U.S. bachelor’s degree or higher. Work experience in the field in lieu of higher education is evaluated at 3:1, i.e. 3 years of full-time work in progressively responsible positions is deemed equivalent to one year of college education. Where work experience is substituted for some or all formal education, an equivalency evaluation acceptable for H-1B purposes may not be accepted for immigrant visa purposes.
The employer must offer a wage to the alien at or above the prevailing wage for U.S. workers employed in that geographic area in similar jobs. The appropriateness of the wage to the offered job and location must be confirmed with the Department of Labor through the filing of a Labor Condition Application.
**For any visa category that requires an LCA (H-1B, H-1B1, E-3), it is very important for the US employer to pay the legal fees and expenses, and not seek to recoup them from the worker via salary deduction or otherwise. Payment of legal costs by the sponsored worker is deemed an indicator of fraud by USCIS, and the Department of Labor will deem such amounts subtracted from the actual salary, which will reduce the salary below the amount stated on the LCA, and this can lead to fines and other violations.
The H-1B worker cannot be an independent contractor, and must be paid the offered wage as a salaried W-2 employee, with all payroll taxes withheld: any amounts paid as commission, discretionary bonus, reimbursed expenses, or non-employee compensation do not count toward satisfying the wage obligation.
Any questions about whether a job offer is in a professional specialty occupation, or whether the worker’s education is sufficiently related to the nature of the offered job, should be discussed with counsel on a case-by-case basis.
More H-1B Cap Information:
Have more questions about H-1B visas? Contact Karin Wolman for a consultation today!