Immigration Services / H1-B Specialty Occupation

Specialty Workers (H-1B)

The H-1B categories apply to aliens coming temporarily to perform services in a specialty occupation, or as a fashion model of distinguished merit and ability. The FY2008 cap on H1-B admissions is 65,000 workers.

Labor Condition Application
The first step to hiring most H-1B workers from outside the U.S. is for the employer to file a labor condition application (LCA) with the Department of Labor (DOL). Then the employer is required to file the LCA approval notice with the I-129 petition.

Some terms and conditions of the H-1B classification:

• Work authorization for H-1B foreign specialty workers is employer-specific (i.e. limited to employment with the approved employer/petitioner).
• A change of employer requires a new H-1B petition; under some circumstances, a nonimmigrant who was previously issued an H1-B visa or provided H1-B nonimmigrant status may begin working for a new H1-B employer as soon as the new employer files a “nonfrivolous” H1-B petition for the nonimmigrant.
• Multiple employers require multiple H-1B petitions. 
• The employer is responsible for return transportation costs for an employee terminated prior to the end of the approved period of employment.
  H-1B foreign specialty workers are not required to maintain foreign residence and may seek permanent residence in the U.S.

Dependents
Dependents (spouses and unmarried children under 21 years of age) of H-1B workers are entitled to H-4 status with the same restrictions as the principal. Dependents may not be employed under the H-4 classification.

H-1B1 Specialty Occupations
The H-1B1 category applies to an alien coming temporarily to perform services in a specialty occupation which requires the theoretical and practical application of highly specialized knowledge requiring completion of a specific course of higher education.

H-1B2 Research and Development Project
The H-1B2 category applies to an alien coming temporarily to perform services of an exceptional nature relating to a cooperative research and development project administered by the Department of Defense.

H-1B3 Fashion Model
The H-1B3 category applies to a fashion model who is nationally or internationally recognized for achievements, to be employed in a position requiring someone of distinguished merit and

Alien Trainees (H-3)
The H-3 classification applies to aliens (beneficiaries) coming temporarily to the U.S. to participate in a training program. There are general H-3’s, and those coming for special education training. There is currently no annual cap on H-3 admissions to the U.S.

The petitioning employer or sponsors must demonstrate that the:

• Proposed training is not available in the beneficiary’s home country
• Beneficiary will not be placed in a position which is in the normal operation of the business, and in which citizens and resident alien workers are regularly employed 
• Beneficiary will not be productively employed except as incidental to training
• Training will benefit beneficiary in pursuing a career outside the U.S.
  

Note: H-3 status is not appropriate for graduate education, including medical training, except under special circumstances. Petitioning employers may not use H-3 classification for training programs primarily designed to benefit the U.S. companies and/or where U.S. workers would be employed but for the trainees’ services.

Dependents
Dependents (spouses and unmarried children under 21 years of age) of H-3 principal trainees are entitled to H-4 status with the same restrictions as the principal. Dependents may not be employed under the H-4 status.