H-1B Visas - Specialty Occupations and Fashion Models

H-1B Visas - Specialty Occupations and Fashion Models

The H-1B visa classification is reserved for U.S. employers who offer employment to job candidates who will work in a "specialty occupation," or as a fashion model of distinguished merit or ability.

Specialty Occupations

A "specialty occupation" is one that requires the theoretical and practical application of a body of highly specialized knowledge. Thus in practical terms, in order for a job to qualify as a specialty occupation, one or more of the following criteria must be met:

• A bachelor's or higher degree (or its equivalent) in a specific field is normally the minimum entry requirement for the position.
• The specific degree requirement for the job is common to the industry, or the job is so complex or unique that it can be performed only by an individual with a degree in that specific field.
• The employer normally requires a degree (or its equivalent) in a specific field for the position.
• 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 in a specific field.

Where an individual has completed significant work experience in positions involving progressively increasing responsibility within the occupation, establishing degree equivalence based on work experience, or a combination of work experience and academic preparation, may be possible.

Fashion Models of Distinguished Merit or Ability

For a fashion model to qualify for the H-1B classification, the employer 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 achievements in the field.

To demonstrate that a modeling position requires a fashion model of distinguished merit and ability, the employer must provide U.S. Citizenship and Immigration Services (USCIS) evidence that establishes that the modeling services either:

• Involve an event or production which has a distinguished reputation, or
• Are for an organization or establishment that has a distinguished reputation or record of employing models of distinguished merit and ability.

Petitions are Specific to Employer and Occupation

H-1B employment is specific to the company that files an H-1B petition with USCIS, and it is limited to the specific occupation described in that petition. While an H-1B employee's status is specific to a petitioning employer, this status can be transferred to a new employer upon the filing and subsequent approval of an H-1B petition by a new employer.

Labor Condition Application

Prior to filing an H-1B petition, the employer must obtain certification of a Labor Condition Application (LCA) from the U.S. Department of Labor. The LCA (Form ETA 9035) sets forth the employer's obligations to ensure that its employment of the H-1B worker will not adversely affect the wages or working conditions of similarly employed United States workers. This application includes certain attestations, a violation of which can result in fines, bars on sponsoring nonimmigrant or immigrant petitions, and other sanctions against the employer. The LCA requires the employer to attest that it will comply with the following labor requirements:

• The employer will pay the H-1B employee a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for this same position in the geographic area in which the H-1B worker will be working;
• The employer will provide working conditions that will not adversely affect other similarly employed workers;
• At the time of the LCA, there is no strike or lockout in effect at the work location; and,
• Notice of the filing of the LCA has been given to the union bargaining representative or has been posted at the place of business.

Although uncommon, employers with a significant population of H-1B workers may be considered "H-1B dependent," thereby triggering additional obligations related to the recruitment and non-displacement of U.S. workers.

Filing Process

After obtaining a certified LCA, the employer's H-1B petition can be filed with USCIS. Employers are required to pay substantial filing fees for the H-1B classification, including a Fraud Detection and Prevention fee ($500) and an H-1B Education and Training Fee ($1,500). These fees are waived in certain situations where the employer is extending the H-1B status of an existing employee. Similarly, certain educational institutions and nonprofit or government research organizations are exempt from the Education and Training Fee, and employers with fewer than 26 full-time employees qualify for a reduced Education and Training Fee ($750).

H-1B Portability

Individuals who have previously been issued an H-1B visa or held H-1B status in the United States may be eligible to take advantage of a "portability" provision that permits a speedier transition from one H-1B employer to another. This H-1B portability provision allows most H-1B workers to begin employment with a new H-1B employer upon the filing of the new H-1B petition. Although this portability provision can be quite useful, H-1B employees and their respective employers should first confirm their eligibility for portability. In general, H-1B candidates who do not already hold lawful H-1B status are required to wait for USCIS approval before beginning work. Moreover, given the recent trend of increased USCIS scrutiny of H-1B petitions, it may sometimes be advisable to commence H-1B employment only upon approval of the employer's petition.

The H-1B Cap

Since 1990, the number of available H-1B visas has been subject to an annual limit, frequently referred to as the "H-1B cap." The current annual limit is 65,000 new visas per year with an additional 20,000 available to H-1B applicants holding a U.S. master's degree or higher. After the annual limit is reached, a candidate must wait until at least the beginning of the USCIS' fiscal year on October 1 to obtain H-1B status and begin work. As a result of the cap, advance planning and strategy are often necessary so that the employer may file as early as permitted for the next fiscal year. USCIS guidelines allow an H-1B petition to be filed up to six months before the H-1B employment will commence. While H-1B cap-related logistics can be complicated, it should be noted that a few exceptions exist:

• H-1B workers who are sponsored by or employed at an institution of higher education or its affiliated or related nonprofit entities or a nonprofit research organization, or a government research organization are not subject to the H-1B cap.
• Up to 6,800 H-1B visas are set aside for nationals of Chile or Singapore pursuant to Free Trade Agreements between those nations and the United States.
• Extensions of H-1B status, amendments to H-1B status, and petitions to "transfer" an H-1B worker's status from one employer to another are not subject to the H-1B cap.

Period of Stay

H-1B petitions may be approved for up to three years, and can be extended for up to a total of six years maximum stay, regardless of the number of employers. Ordinarily, after 6 years of H-1B status, the candidate must usually reside outside of the U.S. for a full year before qualifying for a new six year period of H-1B eligibility. However, in certain limited circumstances, H-1B employees who have started the U.S. permanent residence (Green Card) process may be eligible to extend their status beyond six years, in one-year increments. More specifically, the employee may be eligible for extension beyond six years where an application for labor certification or an immigrant visa petition was filed on his or her behalf at least 365 days prior to reaching the six-year H-1B limit. It is also possible to obtain extensions beyond the six years in three-year increments if an I-140 Immigrant Visa Petition is approved and the individual is from a country for which there is a backlog of immigrant visa availability.

Family Members of H-1B Workers

Spouses and unmarried children (under the age of 21) of H-1B workers are eligible for dependent visas in the H-4 classification; however they are not permitted to undertake employment in while in H-4 status.

For more information about Goel & Anderson's H-1B services, please contact us to schedule an in-person or telephonic consultation.