A foreign worker coming temporarily to the U.S. to perform services

• in a specialty occupation ...

• who meets the requirements for the occupation ... and,

• who has certification from the Secretary of Labor  that the intending employer has filed a labor condition application.

Employer Considerations

The employer of an H-1B candidate must first consider the following: 

• The Alien must be paid as much as any other worker in a similar job either with that employer or in the geographical area, whichever is higher. 
• The employer must meet one hundred percent of the prevailing wage in the work place or its vicinity.
• The employer must post its intent to hire an H1-B worker. 
• The Labor Condition Application contains attestations by the employer, which include that: the worker will not be employed on terms less favorable than those offered to other alien workers in similar jobs; there is no strike or lockout; and, the employer has notified its employees by a job posting or through collective bargaining. 
• The employer will post an actual copy of the LCA or, alternatively, the hiring information that includes salary or the position's salary range. 
• The annual cap on new H-1B petition approvals has repeatedly been reached before the next fiscal  year starts, effectively eliminating some eligible aliens.
• The employer may not by contract require the alien to pay a penalty for leaving the employer's employ prior to a particular date.
• All H-1B petitioners must pay the American Competitiveness and Workforce Improvement Act (ACWIA) fee of $1,500. 
• Petitioners who employ no more than 25  full-time equivalent employees, including any affiliate or subsidiary, may pay a reduced fee of $750. 
• In addition to the base filing fee and any premium processing fee, all new H-1B petitions must be submitted with an additional fraud and detection fee of $500. 
• There is an exemption for petitions to amend of extend an existing H-1B.  

   

Establishing the "Professional" Nature of the Position  

A successful filing must adequately evidence at least one of the four relevant professional criteria required to determine whether the position is considered professional: A baccalaureate (BA) or higher degree or its equivalent is normally the minimum requirement for entry into the particular position The degree requirement is common to the industry in parallel positions among similar organizations The employer normally requires a degree or its equivalent for the position The nature of the specific duties of the particular position are so specialized and complex that (a) it can only be performed by an individual with a degree or (b) knowledge required to perform the duties is usually associated with a bachelor's degree or higher Some fields (architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education,  business specialties, accounting., law , theology, and the arts) are clearly professional though not all occupations within those fields are professional.  Other fields require additional support and evidence so that the complex duties are updated, delineated, and related to the employer's particular business needs.  Requirements should be justified in light of any unique circumstances such as plans to expand the business or customer characteristics.

Computer Industry Professionals

Generally, systems engineers and related positions, pure systems analysts, and programmers of computers used for scientific or engineering applications are considered professional.  By contrast, programmers of computers used for business applications and technicians are not considered to be professional as they normally require training commonly gained and widely available outside of college or university studies.  KLF has been able to successfully circumvent  the general rules by detailing the unique complexities of the position.  KLF is familiar with decisions relevant to the computer industry that deal with whether the professional nature of the position.   Rest assured, the government recognizes that the computer industry is developing with increasingly complexity.   

 Management Positions and Business Specialties  

Convincing USCIS of the professional nature of management position and business specialties has often required use of appellate procedures.  Federal courts have rejected the government's narrow interpretations of "professional" especially concerning business managerial positions involving complex duties.  Federal courts have also invalidated DHS' excessive focus on the size of the employer, amount of salary, and prior record of hiring professionals.