What's an H-1B for Professionals?
The H-1B category is appropriate only for positions that are professional. The Immigration Service has defined "profession" (or "specialty occupation" as it is called in the statute) as an occupation which requires theoretical and practical application of a body of highly specialized knowledge needed for performance in such fields as computer science, engineering, social sciences, business specialties, and the arts. Entry to a profession usually requires completion of a specific course of education at an accredited college or university, culminating in at least a bachelor's degree in a specific occupational specialty. To qualify, the degree is ordinarily needed, but the Service also accepts a state license where it is required, as well as a combination of education, training and experience, provided the applicant is practicing as a professional and is recognized as such.
The H-1B is limited to a stay of six years unless the stay is only intermittent or less than six months a year. After leaving for a year, the person is again eligible.
The INS will not process an H-1B petition without proof that a "labor condition application" (LCA) by the employer has been certified by the U.S. Department of Labor (DOL). Among the required statements in the LCA is an attestation that the salary offered meets prevailing wage standards in the geographic area and is not less than the employer pays to other workers with similar jobs and qualifications. The employer must also provide notice of the H-1B worker's employment and salary to the other employees or their collective bargaining representative, if any, and maintain detailed documentation. The LCA regulations impose penalties on the employer for certain violations, including misrepresentation of a material fact; failure to pay the required wage and filing the LCA during a strike or lockout. If you want more details on the LCA, see the article on LCA Wage Regulations in our library.
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