U.S. employers or individuals may use H-1B visas to employ foreign workers based on a temporary offer of employment. This visa is limited to offers of employment for a “specialty occupation” worker or a fashion model of distinguished merit or ability.
A “specialty occupation” H-1B visa requires the theoretical and practical application of a body of highly specialized knowledge. Commonly, the specialty occupation requirement is met if the offered employment requires at least a U.S. bachelor’s degree or its equivalent that is relevant to the occupation. Where the bachelor’s degree requirement for the offered employment is in an occupation in which the minimum educational entry requirements are not clearly established or if the offered employment does not appear to support the requirement of a bachelor’s degree, the U.S. Citizenship & Immigration Services (USCIS) may issue a Request for Evidence (RFE) in the H-1B petition. In such cases, the employer may rely on one or more of the following criteria to establish that the offered position qualifies as a specialty occupation:
-The degree requirement is common in the employer’s industry.
-The job offered is so complex or unique that it can be performed only by an individual with a degree in that specific field.
-The nature of the specific duties is so specialized and complex are such that they can be ordinarily performed by an individual who has attained the knowledge associated with the attainment of a bachelor’s in a specific field.
-The employer normally requires a degree or the equivalent in a specific field for the position.
The H1B visa worker must also meet the specialty occupation requirements. Lack of an academic degree may be overcome if the H-1B worker can demonstrate meeting the degree equivalency through a combination of education and progressive experience.
Fashion Models of Distinguished Merit or Ability
A less frequently used H-1B visa is for accomplished fashion models. An employer petitioning for a fashion model must demonstrate that the position requires a fashion model of distinguished merit and ability and that the H-1B fashion model is nationally or internationally recognized for his or her achievements in the field.
To receive USCIS approval, the employer must establish by evidence that the modeling services involves either:
-An event or production which has a distinguished reputation, or
-An organization or establishment that has a distinguished reputation or record of employing models of distinguished merit and ability.
Contact Paruthipattu Law Firm Today
The Paruthipattu Law Firm prides itself in offering strategic immigration solutions that are common (nowadays) but complex H-1B visa situations. Representative of these type of situations are:
–Material Changes to an approved H1B visa petition. An H-1B employment is specific to the company, the position, and the location. However, if any change occurs, the question arises whether the change is material. The answer to this question will determine whether a new or an amended petition may be required. Determination of material change is facts-specific. The firm can help you with this nuanced area of the H-1B visa process.
–Labor Condition Application (LCA) Compliance. Significant to the employer’s risk management in the H-1B context is its compliance with U.S. Department of Labor (USDOL) regulations found at Chapter 20 of the Code of Federal Regulations (CFR) Section 655, Subpart H. Prior to an H-1B filing, the employer must obtain LCA certification from USDOL by submitting the LCA Form ETA 9035 via its iCert Visa Portal System. USDOL certification of an employer’s LCA is commonly granted because USDOL relies on the employer’s attestations. Thus, the employer’s compliance with these attestations becomes a critical component of its ability to defend itself should there be a DOL investigation. USDOL obligates employers to ensure that it has taken certain steps to protect U.S. workers from being adversely affected by hiring H-1B workers. These are:
–Notice. The employer must attest that it provided notice to U.S. workers at the actual worksite or place of employment accomplished through an appropriate means of communication.
–Payment of Required Wage and Benefits. The employer must attest it will pay the required wage (the greater of employer’s actual wage or the prevailing wage specific to the metropolitan statistical area) and benefits to H-1B workers offered to similarly employed U.S. workers.
–No Labor Dispute. The employer must attest that there is no strike, lockout, or work stoppage in the course of a labor dispute in the occupational classification in the area of intended employment.
Any failure or gaps in the H-1B employer’s compliance protocols pose a significant corporate liability – risk of fines, debarment from using the H-1B program, and or other sanctions against the employer.
The Firm can help employers with LCA compliance as part of its representation of H1B visa petitions or independently by helping employers achieve compliance through audits and establishing and executing best practices.