♦ H-1B Classification

An H-1B classification applies to an alien who is coming temporarily to the United States to perform the following:

(1) To perform services in a specialty occupation (except agricultural workers, and aliens described in section 101(a)(15)(O) and (P) of the Act) described in section 214(i)(1) of the Act, that meets the requirements of section 214(i)(2) of the Act, and for whom the Secretary of Labor has determined and certified to the Attorney General that the prospective employer has filed a labor condition application under section 212(n)(1) of the Act; (Revised 3/7/97; 62 FR 10422 )
(2) To perform services of an exceptional nature requiring exceptional merit and ability relating to a cooperative research and development project or a coproduction project provided for under a Government-to-Government agreement administered by the Secretary of Defense;
(3) To perform services as a fashion model of distinguished merit and ability and for whom the Secretary of Labor has determined and certified to the Attorney General that the prospective employer has filed a labor condition application under section 212(n)(1) of the Act.

♦ Requirements

1. H-1B worker must have an employer-employee relationship with the petitioning U.S. employer. In general, a valid employer-employee relationship is determined by whether the U.S. employer may hire, pay, fire, supervise or otherwise control the work of the H-1B worker.

2. H-1B worker’s job must qualify as a specialty occupation.
“Specialty Occupation” means an occupation that requires (A) theoretical and practical application of a body of specialized knowledge; and (B) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

3. H-1B worker must be in a specialty occupation related to your field of study.

4. US employer must pay at least the actual or prevailing wage for your occupation, whichever is higher.

5. An H-1B visa number must be available at the time of filing the petition, unless the petition is exempt from numerical limits.


♦ Key Issues
1. How can a position be qualified as a “Specialty Occupation”?
The job requirement for the position must meet one of the following criteria: (a) A bachelor’s degree or higher degree or its equivalent is normally the minimum requirement for the particular position; (b) the degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor’s degree in a field related to the position; or (c) the employer normally requires a degree or its equivalent for the position; or The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

2. How do a shareholder H-1B worker demonstrate an employer-employee relationship with the petitioner?

The petitioner may be able to demonstrate that an employer-employee relationship exists if the control of H-1B worker’s work is exercised by others. For example, if the petitioning company has a board of directors, preferred shareholders, investors, or other factors that show the company has the right to control the terms and conditions of the H-1B worker’s employment (namely the right to hire, fire, pay, supervise or otherwise control the terms and conditions of your employment), then the H-1B worker may be able to meet this requirement.

The evidence to demonstrate the distinction between the H-1B worker’s ownership interest and the right to control H-1B worker’s employment includes:Term Sheet,
Capitalization Table, Stock purchase Agreement, Investor rights Agreement, Voting Agreement, Organizational documents and operating agreements.

3. How do an H-1B position within the petitioner is in an occupation that normally requires a degree in a related field?

USCIS often refers to the Occupational Outlook Handbook (OOH) from the Department of Labor (DOL) to help determine whether certain jobs require a degree. If the OOH does not indicate that a degree in a related field is normally the minimum requirement for the position, examples of evidence you may submit to demonstrate that the position normally requires such a degree includes:

  • Copies of past position announcements, if relevant, that reflect the minimum requirements for the position and which show that your company normally requires a degree for the position. Your position is so specialized or complex it can only be performed by someone with a degree, including a detailed description of the petitioner’s business/products/services and the duties of the position.
  • A detailed description of the petitioner’s business/products/services and the duties of the position, along with written opinions from experts confirming that your position is so specialized or complex it can only be performed by someone with a degree (in a related field).
  • Job listings, letters and/or affidavits from other employers reflecting the minimum requirements for the position and which shows that the degree requirement is common to the industry in parallel positions among similar organizations.
  • Written opinions from experts in the field explaining how the degree is related to the role you will perform.

4. How do the petitioner show that an H-1B worker’s degree is related to the specialty occupation?

The evidence may include the following: (a) a detailed explanation of the specific duties of the position, the product or service the petitioner company provides, or the complex nature of the role an H-1B worker will perform, and how an H-1B worker’s degree relates to the role; (b)written opinions from experts in the field explaining how the degree is related to the role an H-1B worker will perform; (c) Printouts from online resources describing the degree fields normally associated with the occupation. (d) Evidence that similar companies in the petitioner’s industry require similar degrees for similar positions.

5. May a foreign worker without a bachelor’s degree qualify for H-1B?
If an H-1B position qualifies as do not have at least a bachelor’s degree in a field related to the position, then an alien worker may qualify by:

(a) Holding an unrestricted state license, registration or certification which authorizes you to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or
(b)Having education, specialized training, and/or progressively responsible experience that is equivalent to the completion of a U.S. bachelor’s or higher degree in the specialty occupation, and having recognition of expertise in the specialty through progressively responsible positions directly related to the specialty. In general, 3 years of work experience or training in the field is considered as equivalent to 1 year of college.

How can we know what’s the prevailing wage for the offered position?
The prevailing wage is determined based on the position in which you will be employed and the geographic location where you will be working (among other factors). The U.S. Department of Labor (DOL) maintains a database with applicable current prevailing wage levels based on occupation and work location. To view the wage database and estimate the prevailing wage that may be required for your position, click here.

How do I demonstrate that I will be paid the appropriate wage?
To demonstrate you will be paid the appropriate wage, you must submit a Labor Condition Application (LCA) for your position, certified by the Secretary of Labor, which states, in part:
The employer is offering and will offer during the period of authorized employment to aliens admitted or provided status as an H-1B non-immigrant wages that are at least the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or the prevailing wage level for the occupational classification in the area of employment, whichever is greater, based on the best information available as of the time of filing the application.

If you are currently working for the company (e.g. working for the company you started while on OPT), some of the evidence you may submit to demonstrate that you will be paid the appropriate wage includes:
Your most recent paystubs
Your most recent W-2 showing the wages you received
If you are not currently working for the company, you may submit a letter from the company attesting to the wage that you will be paid once employed as an H-1B.

What is H-1B visa numbers?
The H-1B visa has an annual numerical limit, or cap, of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization are not subject to this numerical cap. Cap numbers are often used up very quickly, so it is important to plan in advance if you will be filing for an H-1B visa that is subject to the annual H-1B numerical cap. The U.S. government’s fiscal year starts on Oct. 1. H-1B petitions can be filed up to 6 months before the start date, which is generally April 1 for an October 1 start date.