are for persons in a specialty occupation, that requires at least a bachelor’s degree. The applicant employee does not need to maintain a foreign residence and may have “dual intent,” meaning that he or she may also intend to remain in the U.S. permanently. The petitioning employer is required to obtain a certification from the Department of Labor that it has filed a Labor Condition Application.
There is a limit to the number of H-1B visas available each year. The H-1B visa year starts on October 1 and the earliest date to apply each year is April 1. It is advisable to plan to file an H-1b petition as quickly as possible in the H-1b visa year as once the H-1b visa cap is reached no more H-1b visas will be issued until the following H-1b visa year commencing October 1.
H-1B LENGTH OF STAY:
Initial stay for H-1B professional is three years; extension of stay in increments of up to 3 years. Total stay limited to 6 years. This may be extended for longer periods for persons who have Labor Certification or immigrant petitions pending or are waiting for a permanent visa number.
An H-1B classification may be granted to an alien who will perform services in a specialty occupation which requires theoretical and practical application of a body of highly specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation in the United States, and who is qualified to perform services in the specialty occupation because he or she has attained a baccalaureate or higher degree or its equivalent in the specialty occupation.
Specialty occupation means an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.
To qualify as a specialty occupation, the position must meet one of the following criteria:
- A baccalaureate 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 or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree.
- The employer normally requires a degree or its equivalent for the position; or
- The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
A permanent labor certification issued by the Department of Labor (DOL) allows an employer to hire a foreign worker to work permanently in the United States. In most instances, before the U.S. employer can submit an immigration petition to the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS), the employer must obtain a certified labor certification application from the DOL’s Employment and Training Administration (ETA). The DOL must certify to the USCIS that there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
PERM labor certification is an extremely complicated process. It involves a thorough review of the alien beneficiary’s qualifications, the position offered, the employment setting, the wording of the job requirements, the detailed arrangement and follow-up of recruitment schedules, the employer’s compliance with recruitment procedures, and the proper documentation and technical information in the forms. The general process for filing a PERM labor certification is described below:
- Employer agrees to sponsor the alien beneficiary for PERM Labor Certification;
- Employer retains an immigration attorney for filing PERM Labor Certification, and establishes Attorney-Client Relationship;
- Attorney collects information needed for labor certification, including detailed job description, petitioning employer information and alien beneficiary’s qualifications and work experience;
- Employer registers on the PERM online filing system following attorney’s instruction and assigns a sub-account to the attorney;
- Attorney communicates with the employer and alien beneficiary and designs job descriptions and determines the requirements for the position based on this communication;
- Attorney obtains prevailing wage determination from the National Prevailing Wage Center (NPWC);
- Attorney designs the job recruitment advertisements including job title, job duties and job descriptions;
- With assistance from the attorney, the employer will arrange the recruitment schedule and advertise the job posting with the proper internal and external media in accordance with the DOL provisions;
- Recruitment activities must be completed within 30-180 days before submitting the application (employer should document all recruitment activities);
- Employer screens and reviews US workers’ job applications, and conducts phone or on-site interviews if any applicant meets the minimum job requirements;
- If sufficient qualified US workers are not found for the position, the employer is eligible to submit the PERM application;
- Attorney works on the recruitment reports based on the recruitment documents provided by the employer;
- Attorney prepares the online PERM application and provides a copy to the employer and the alien beneficiary for review before filing;
- Attorney submits the online PERM Labor Certification Application upon approval from the employer and the beneficiary. The date the labor certification application is received by the DOL is known as the filing date and is used by USCIS and the Department of State as the priority date;
- Attorney receives an e-mail from the DOL confirming the PERM Labor Certification has been received and submitted for processing;
- If the DOL agrees that the employer conducted the required recruitment and found no qualified and available U.S. workers for the position, the DOL usually certifies (approves) the PERM Labor Certification within 45-90 days from the date of filing, although some cases may be approved in just a couple of days;
If your PERM is audited, the DOL will ask your employer to provide additional evidence for the application. After your employer responds to the audit request, the DOL will review the new evidence and either approve or deny the PERM.
After receiving the approved PERM, your employer can move on to the next big step of the process, which is filing an I-140 visa petition on your behalf with U.S. Citizenship and Immigration Services.