The H-1B Visa
To qualify for an H1-B visa, the foreign national must be hired by a U.S. employer to fulfill a specialty occupation. A specialty occupation is a position that requires a minimum of a bachelor's degree, or equivalent, to perform the duties and responsibilities of the position. Also, the foreign national must hold at least a bachelor's degree in the relevant field, or the equivalent based upon formal education, training and experience. The rule of thumb for equivalency is that for every year missing from the completion of a bachelor's degree, three years of related work experience is required.
Specialty Occupations generally include positions in Accounting, Architecture, Arts, Business Specialties, Education, Engineering, Law, Mathematics, Medicine and Health, Physical Sciences, Social Sciences, and Theology, or any area of study at major universities where a bachelor's degree program if offered. The H1-B visa is temporary, and is granted for three years at a time for a maximum total of six years, except under special circumstances when a green card petition has been filed and pending for at least one year on behalf of the H-1B employee.
The H-1B Process and Approval Issues
A U.S. employer who temporarily needs the services of a foreign national for a professional position must demonstrate that both the job requirements and the foreign national's credentials are professional in nature. The employer must also meet Department of Labor (DOL) requirements and petition U.S. Immigration for permission to employ the particular Canadian.
The Labor Condition Application Process
In order to qualify for an H-1B visa, the U.S. employer must certify to the DOL that in hiring the foreign national, it will protect similarly employed U.S. workers in the same city. In this respect, the employer certifies through the electronic filing of a Labor Condition Application (LCA):
- It is paying the higher of either the wages that it pays its own similarly employed workers or 100% of the wages paid to similar workers employed in the geographic region;
- The working conditions of U.S. workers employed at the employment site are not adversely affected;
- There is no strike/lockout at the worksite nor in the occupation for which a foreign professional is sought;
- It has given notice to current employees that it is seeking to hire an H-1B professional based on conspicuous posting of the notice for 10 business days.
In addition, the employer must maintain a wage file that is open to the public, and follow through on the certification filed with the DOL or they are in violation of law and could be required to pay back wages and might incur civil penalties.
The Immigration Petition and Visa Process
Once the LCA is returned from the DOL the employer must submit a Form I-129 Petition for Nonimmigrant Worker along with supporting documentation proving that it has completed the LCA process and demonstrating that both the employer's position and the foreign national qualify for the H-1B visa. Current government filing fees range from $1,570 for U.S. employers with 25 or fewer employees, to $2,320 for employers with 26 or more employees. Immigration typically processes an H-1B petition in 90 to 150 days, an extraordinarily long time for most employers who need to fill a position almost immediately. However, the employer has the option of paying a Premium Processing fee of $1,000. Upon receipt of this fee, the H-1B petition will be processed within 15 days.
When approved, the employer will receive an I-797 Approval Notice evidencing the foreign national's eligibility to work in the United States. A Canadian citizen may begin working for the new employer only upon approval of the H-1B petition, and receipt of an I-94 document. The I-94 document is usually obtained at a U.S./Canada land Port of Entry or Canadian airport Pre-Flight Inspection facility upon presentation of the H-1B Approval Notice. All other foreign nationals must apply for an H-1B visa at a U.S. consulate or embassy before entering the United States to begin their H-1B work.
If the foreign national is already in the United States in valid status, and the H-1B petition requests a change of status, then the I-797 Approval Notice will include the I-94 Document and the foreign national can start working upon receipt of the approval. In those cases where the foreign national is changing from one H-1B position to another H-1B position with a different U.S. employer, they can start working with that new employer when the H-1B petition is filed and received by the U.S. immigration service.
Approval Issues
The primary issue with U.S. immigration approving H-1B petitions is whether the position being offered by the U.S. employer is a specialty occupation or a professional position that requires the services of a degreed (or equivalent) foreign national. Put another way, is a bachelor's degree a standard requirement for the position being filled? For example, an engineering company seeking to fill an engineer position requires the applicant to have a minimum of a bachelor's degree in engineering to perform the duties of the position. To be sure, major universities offer bachelor's degree programs in engineering.
U.S. immigration defines a specialty occupation as one that requires a theoretical and practical application of a body of highly specialized knowledge and attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum entry into the occupation in the United States. U.S. immigration's standards for a specialty occupation require that the position must meet one of four criteria:
- A bachelor's or higher degree or its equivalent is normally the minimum requirement for entry into the particular position.
- A degree requirement is common in industry and parallel positions among similar organizations or alternatively that the particular position is so complex or unique that a degree is require.
- The employer normally requires a degree or equivalent for the position.
- The nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
Evidence commonly submitted to meet this requirement includes:
- An excerpt from the Occupational Outlook Handbook about the position that specifically states a bachelor's degree is a minimum requirement for the occupation.
- Letters attesting that the degree requirement is common in industry and parallel positions among similar organizations.
- Employer's organizational chart showing similarly employed individuals and copies of those individuals credentials evidencing they also possess a bachelor's degree or equivalent.
- Detailed list of the position's duties and responsibilities, and the other positions at the employer and outside the employer who the Canadian will interact with in performing the job.
