What is an H-1B Visa?

The H-1B visa is an employment-based visa that allows certain qualified foreign nationals to work in specialty occupations in the U.S. for a finite period of time. A “specialty occupation” is one that requires theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor such as architecture, engineering, biotechnology, medicine, theology, or accounting, among others. 

A U.S. employer must sponsor such workers and their employment is limited to the sponsoring employer. There are laws limiting the number of workers in this category, but significant exceptions are provided to allow certain types of skilled workers greater access to U.S. opportunities.

H-1B Visa Challenges

  • Specialty Occupation Requirements

    • ​In order to qualify for the H-1B category, the position must be a “specialty occupation.” In other words, the position must require a Bachelor’s Degree, at a minimum, to perform the duties of the role, and the foreign national must have a Bachelor’s Degree, at a minimum, in a field related to the position. If the foreign national needs to use experience, combined with education, to show the government that he or she has a Bachelor’s Degree in a field related to the position, this is often a challenge.

  • Third Part Replacements 

    • ​Many U.S. employers hire foreign workers to be placed off-site at a client’s location.  This also presents challenges in the H-1B visa context.  The U.S. employer must provide evidence that it maintains the right to the control the foreign worker.  That evidence may consist of a service agreement, a statement of work, a purchase order, or a letter from the customer. It is often a challenge to obtain such documentation with the level of detail required by the USCIS. This challenge may also be compounded, if there are vendors between the sponsoring employer and the ultimate end customer.

  • Posting Labor Certification Application  (LCA) Filing Notifications 

    • ​Beyond the above, the Department of Labor’s regulations also require workers in the same occupation at the same work location where the H-1B work is to be performed to receive notice of the filing of the LCA. Where workers are placed off-site, properly posting this required notice at the customer location often presents a challenge as well.

An immigration attorney at Liberty Johnson can help you sort through the regulations and determine how best to proceed when employing foreign workers.

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