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|Temporary Worker In a Specialty Occupation (H1B)
The H1B visa category is available for individuals who are to be employed by a United States employer in a "specialty occupation." The law defines "specialty occupation" as an occupation which requires: "theoretical and practical application of a body of specialized knowledge," and "attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States."
Given the popularity of this visa category, the annual cap has frequently been a topic of debate. Currently, the law allows the issuance of 65,000 new H1B visas each fiscal year (beginning on October 1 of each year). In 2007, this cap was exceeded on the first day that employers were permitted to submit new H1B petitions (the first day of submission is April 1 of each year, as the immigration regulations permit such filings 6 months before the requested authorization date). This cap, however, does not apply to requests made by H1B workers in the United States requesting a change of employer, amended petition or extension of status.
For all H1B petitions, the United States Citizenship an Immigration Services (USCIS) requires employer to submit evidence satisfying the following criteria:
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|In order for the prospective H1B worker to qualify to perform in a specialty occupation, he or she must meet one of the criteria listed by the USCIS:|
The employer must follow a two-step process: submitting a labor condition application (LCA) with the U.S. Department of Labor; and filing an I-129 petition with supporting documentation with the USCIS.
On the LCA, the employer makes attestations involving pay, working conditions and notice to U.S. workers of its intention to hire a foreign worker. These attestations are a means of ensuring that the H1B worker is employed under the same working conditions and pay scale as those existing for U.S. workers. The employer must state on the LCA that it will pay the H1B worker the "prevailing wage" for the occupation in the intended area of employment, as determined at the time of filing the LCA.
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