| Here are some useful tips to keep in mind when filing | | | | various government agencies that are involved in the |
| H-1B Visa Petitions | | | | process. With good front-end case strategy, the many |
| 1) THE JOB DESCRIPTION AND THE DEGREE | | | | steps involved in preparing an H-1B, requiring the |
| REQUIREMENT | | | | cooperation of all parties, can go very smooth and an |
| What is the definition of a specialty occupation? The | | | | approvable petition can be filed with all necessary |
| job offer and the job description must be for a | | | | documents. An approval requires that a case be |
| specialty occupation that requires a minimum of a | | | | prepared correctly from the start. It is often not |
| bachelor's degree or its foreign equivalent. | | | | possible to reverse strategy after the case is filed. |
| A specialty occupation requires the theoretical and | | | | Planning ahead is crucial to flush out any issues that |
| practical application of a body of specialized | | | | need to be overcome. |
| knowledge along with at least a bachelor's degree or | | | | In summary, the demand for H-1B visas, although not |
| its equivalent. For example, architecture, engineering, | | | | as high in this economy, have tougher documentation |
| mathematics, physical sciences, social sciences, | | | | standards coupled with the Department of Labor |
| medicine and health, education, business specialties, | | | | delays with new LCA software. By understanding the |
| accounting, law, theology, and the arts are specialty | | | | issues involved in the H-1B process, your attorney can |
| occupations. | | | | take a proactive approach to assure that the needs of |
| Small to medium-size companies are being asked to | | | | their clients are addressed early. |
| justify why the position requires someone with a | | | | 3) WHEN THE OCCUPATION REQUIRES A |
| bachelor's degree and to explain, through various types | | | | LICENSE |
| of evidence including organizational charts, why their | | | | USCIS' approval of an H-1B petition that requires a |
| business is more unique than other similar businesses in | | | | license, is not authorization for the employee to |
| their industry that they would require a candidate with | | | | practice his or her profession without the required |
| a bachelor's degree in a particular position. | | | | license. USCIS regulation provides that if an occupation |
| Bachelor's Degree equivalency can be attained | | | | requires a state or local license to fully perform the |
| through a single-source foreign degree that meets US | | | | duties of the occupation, the foreign worker must have |
| standards, a combination of a degree and work | | | | the license prior to the approval of the petition. |
| experience, or a work experience alone equivalency | | | | This can be a Catch 22....Some states will not issue a |
| that meets the "3 for 1" rule; namely, that 3 years of | | | | state license unless the individual worker presents |
| work experience is equivalent to 1 year of university | | | | evidence to the State Board that they are legally |
| level education (this requires an expert credential | | | | authorized to be employed in the USA. Some State |
| evaluation by a service that is authorized to evaluate | | | | Boards require the worker to establish that they have |
| work experience). | | | | been granted H-1B status as a prerequisite to issuing |
| Note: Bear in mind that if you have a skilled immigration | | | | the license. For example, certain State Boards of |
| professional that has a strategy in place for your | | | | Pharmacy will not issue a pharmacist license until the |
| green-card sponsorship (permanent residency), it is | | | | worker presents evidence of work authorization. |
| essential that your degree and its equivalency be | | | | Teachers have been unable to obtain licensure until |
| carefully reviewed so that it will be compatible with the | | | | they obtain social security numbers which cannot be |
| classification under which you will be filing. | | | | achieved until one is authorized to work in the USA. |
| USCIS now requires very detailed job descriptions that | | | | With the above being said, USCIS adjudicators have |
| contain the position summary, duties and responsibilities, | | | | been instructed to approve H-1B petitions for a |
| as well as the percentage of time spent on each job | | | | one-year period if a State or local license to engage in |
| duty. It is hard to imagine that a job description with a | | | | the profession is required, and the appropriate licensing |
| 15-bullet point list of duties and a full page in length is | | | | authority will not provide such license to the worker |
| insufficient, but when you work with a skilled | | | | without evidence that that they have been granted |
| immigration practitioner, this can be successfully argued | | | | H-1B status. At the end of the one-year period, the |
| against the O*NET and the OOH which is the primary | | | | employer is required to file another petition with a |
| source of job information for USCIS and the | | | | request for extension and also present evidence at |
| Department of Labor. | | | | that time that state licensure has been obtained. |
| In summary: Employers need to be prepared with | | | | As a condition to approving petitions involving state or |
| complete job descriptions for their H-1B prospective | | | | local licensure, the worker must demonstrate that he |
| employees and document the need for a degreed | | | | or she has filed an application for the license according |
| professional thoroughly in their casework. | | | | to the State or local rules and procedures and provide |
| 2) FILE EARLY | | | | evidence that they are qualified to receive the license, |
| When should I start my case? | | | | and that all educational, training experience and other |
| It is recommended that you file H-1B cap-subject | | | | requirements are met, including healthcare certification, |
| cases well in advance to avoid the rush that normally | | | | at the time of filing the petition. For instance, Physical |
| occurs when employers become aware of cap | | | | Therapists must provide a letter or statement signed |
| deadlines and when foreign workers obtain job offers | | | | by an authorized state physical therapy licensing official |
| that require cap subject visa numbers. Bottom line, | | | | in the state of intended employment, indicating that the |
| cap-subject cases should be started ASAP - even | | | | PT is qualified to take the state's written licensing |
| though the cap will probably remain open most of this | | | | examination for physical therapists and thereafter |
| year. | | | | obtain state licensure. |
| How long does it take to prepare an H-1B Case? | | | | We trust that you have found these tips informative. |
| Unfortunately with each filing season, the process | | | | Please bear in mind that this is information only, and |
| becomes more burdened with longer wait times to | | | | does not take the place of informed counsel when |
| draft and prepare a case. Thus, we do not | | | | specific immigration advice is needed. |
| recommend waiting until the last minute because of the | | | | |