H-1B temporary workers in a specialty occupation

H-1B temporary workers in a specialty occupation

The H-1B program applies to employers seeking to hire nonimmigrant aliens as workers in specialty occupations. A specialty occupation is one that requires the application of a body of highly specialized knowledge and the attainment of at least a bachelor’s degree or its equivalent.

The law establishes certain standards in order to protect similarly employed U.S. workers from being adversely affected by the employment of the nonimmigrant workers, as well as to protect the H-1B nonimmigrant workers.

Requirement 1 - You 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. In some cases, the sole or majority owner of the petitioning company or organization may be able to establish a valid employer-employee relationship, if the facts show that the petitioning entity has the right to control the beneficiary’s employment.

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

Some of the evidence you may submit to demonstrate the distinction between your ownership interest and the right to control your employment includes: Term Sheet, Capitalization Table, Stock purchase Agreement, Investor rights Agreement, Voting Agreement, Organizational documents and operating agreements

Requirement 2 – Your job must qualify as a specialty occupation by meeting one of the following criteria:

A bachelor’s degree or higher degree or its equivalent is normally the minimum requirement for the particular position;
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;
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.

Requirement 3 – Your job must be in a specialty occupation related to your field of study.

Some of the evidence you may submit to demonstrate that your degree is related to your position includes:

A detailed explanation of the specific duties of the position, the product or service your company provides, or the complex nature of the role you will perform, and how your degree relates to the role.

Written opinions from experts in the field explaining how the degree is related to the role you will perform.
Printouts from online resources describing the degree fields normally associated with the occupation.
Evidence that similar companies in your industry require similar degrees for similar positions.

If your position qualifies as do not have at least a bachelor’s degree in a field related to your position, then you may qualify by:

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
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.

Requirement 4 – You must be paid at least the actual or prevailing wage for your occupation,

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).