H-1B Specialty Occupations, DOD Cooperative Research and Development Project Workers, and Fashion Models:
This visa category applies to people who wish to perform services in a specialty occupation, services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project, or services as a fashion model of distinguished merit or ability.
|Visa Category||General Requirements||Labor Condition Application Required?|
|H-1B Specialty Occupations /td>||
The job must meet one of the following criteria to qualify as a specialty occupation:
• Bachelors or higher degree or its equivalent is normally the minimum entry requirement for the position
|Yes. The prospective employer must file an approved Form ETA-9035, Labor Condition Application (LCA), with the Form I-129, Petition for a Nonimmigrant Worker. See the links to the Department of Labors (DOL) Office of Foreign Labor Certification and USCIS forms to the right.
For more information see the Information for Employers Employees link to the left.
DOD Researcher and Development Project Worker
The job must meet both of the following criteria to qualify as a DOD cooperative research and development project:
• The cooperative research and development project or a co-production project is provided for under a government-to-government agreement administered by the U.S. Department of Defense
|The position/services must require a fashion model of prominence.
To be eligible for this visa category you must be a fashion model of distinguished merit and ability.
|Yes. The prospective employer must file an approved LCA with the Form I-129. See the links to the Department of Labors Office of Foreign Labor Certification and USCIS forms to the right.|
*For more information, see 8 CFR §214.2(h)(4)(iii)(A).
**For more information see 8 CFR §214.2(h)(4)(iii)(C).
Step 1: (only required for specialty occupation and fashion model petitions): Employer Submits LCA to DOL for certification.
The employer must apply for and receive DOL certification of an LCA. For further information regarding LCA requirements and DOLs inert process, see the Foreign Labor Certification, Department of Labor link to the right.
Step 2: Employer Submits Completed Form I-129 to USCIS.
The employer should file Form I-129, Petition for a Nonimmigrant Worker, with the correct USCIS Service Center. Please see our I-129 Direct Filing Chart page. The DOL-certified LCA must be submitted with the Form I-129 (only for specialty occupation and fashion models). See the instructions to the Form I-129 for additional filing requirements.
Step 3: Prospective Workers Outside the United States Apply for Visa and/or Admission.
Once the Form I-129 petition has been approved, the prospective H-1B worker who is outside the United States may apply with the U.S. Department of State (DOS) at a U.S. embassy or consulate abroad for an H-1B visa (if a visa is required). Regardless of whether a visa is required, the prospective H-1B worker must then apply to U.S. Customs and Border Protection (CBP) for admission to the United States in H-1B classification.
Labor Condition Application (LCA)
Prospective specialty occupation and distinguished fashion model employers must obtain a certification of an LCA from the DOL. This application includes certain attestations, a violation of which can result in fines, bars on sponsoring nonimmigrant or immigrant petitions, and other sanctions to the employer. The application requires the employer to attest that it will comply with the following labor requirements:
• The employer will pay the beneficiary a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for your position in the geographic area in which you will be working.
• The employer will provide working conditions that will not adversely affect other similarly employed workers. At the time of the labor condition application there is no strike or lockout at the employer place of business. Notice of the filing of the labor condition application with the DOL has been given to the union bargaining representative or has been posted at the place of business.
Period of Stay
As an H-1B nonimmigrant, you may be admitted for a period of up to three years. Your time period may be extended, but generally cannot go beyond a total of six years, though some exceptions do apply under sections 104(c) and 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21).
Your employer will be liable for the reasonable costs of your return transportation if your employer terminates you before the end of your period of authorized stay. Your employer is not responsible for the costs of your return transportation if you voluntarily resign your position. You must contact the Service Center that approved your petition in writing if you believe that your employer has not complied with this requirement.
The H-1B visa has an annual numerical limit cap of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. masters degree or higher are exempt from the cap. Additionally, H-1B workers who are petitioned for 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 this numerical cap.
For further information about the numerical cap, see our Fiscal Year (FY) 2015 H-1B Cap Season Web page.
Family of H-1B Visa Holders
Your spouse and unmarried children under 21 years of age may seek admission in the H-4 nonimmigrant classification. Family members in the H-4 nonimmigrant classification may not engage in employment in the United States.
Questions Answers: USCIS Issues Guidance Memorandum on Establishing the Employee-Employer Relationship in H-1B Petitions
Published Jan. 13, 2010; revised Aug. 2, 2011 and March 12, 2012
On Jan. 8, 2010, U.S. Citizenship and Immigration Services (USCIS) issued updated guidance to adjudication officers to clarify what constitutes a valid employer-employee relationship to qualify for the H-1B specialty occupation classification. The memorandum clarifies such relationships, particularly as they pertain to independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites. The memorandum is titled, Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements: Additions to Officers Field Manual (AFM) Chapter 31.3(g)(15)(AFM Update AD 10-24). (http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2010/H1B%20Employer-Employee%20Memo010810.pdf) In addition to clarifying the requirements for a valid employer-employee relationship, the memorandum also discusses the types of evidence petitioners may provide to establish that an employer-employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period.
Questions and Answers
Q1: Does this memorandum change any of the requirements to establish eligibility for an H-1B petition?
A1: No. This memorandum does not change any of the requirements for an H-1B petition. The H-1B regulations currently require that a United States employer establish that it has an employer-employee relationship with respect to the beneficiary, as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee. In addition to demonstrating that a valid employer-employee relationship will exist between the petitioner and the beneficiary, the petitioner must continue to comply with all of the requirements for an H-1B petition including:
• establishing that the beneficiary is coming to the United States temporarily to work in a specialty occupation;
• demonstrating that the beneficiary is qualified to perform services in the specialty occupation; and
• filing of a Labor Condition Application (LCA) specific to each location where the beneficiary will perform services.
Q2: What factors does USCIS consider when evaluating the employer-employee relationship?
A2: As stated in the memorandum, USCIS will evaluate whether the petitioner has the right to control the beneficiarys employment, such as when, where and how the beneficiary performs the job. Please see the memorandum for a list of factors that USCIS will review when determining whether the petitioner has the right to control the beneficiary. Please note that no one factor is decisive; adjudicators will review the totality of the circumstances when making a determination as to whether the employer-employee relationship exists.
Q3: What types of evidence can I provide to demonstrate that I have a valid employer-employee relationship with the beneficiary?
A3: You may demonstrate that you have a valid employer-employee relationship with the beneficiary by submitting the types of evidence outlined in the memorandum or similar probative types of evidence.
Q4: What if I am unable to submit the evidence listed in the memorandum?
A4: The documents listed in the memorandum are only examples of evidence that may establish the petitioners right to control the beneficiarys employment. Unless a document is required by the regulations, i.e. an itinerary, you may provide similarly probative documents. You may submit a combination of any documents that sufficiently establish that the required relationship between you and the beneficiary exists. You should explain how the documents you are providing establish the relationship. Adjudicators will review and weigh all the evidence submitted to determine whether a qualifying employer-employee relationship has been established.
Q5: Am I required to submit a letter or other documentation from the end-client that identifies the beneficiary to demonstrate that a valid employer-employee relationship will exist between the petitioner and beneficiary if the beneficiary will perform services at an end-client/third-party location?
A5: No. While documents from the end-client may help USCIS determine whether a valid employer-employee relationship will exist, this type of documentation is not required. You may submit a combination of any documents to establish, by a preponderance of the evidence, that the required relationship will exist. The types of evidence listed in the memorandum are not exhaustive. Adjudicators will review and weigh all the evidence submitted to determine whether you have met your burden in establishing that a qualifying employer-employee relationship will exist.
Q6: What if I receive or have received a Request for Evidence (RFE) requesting that I submit a particular type of evidence and I do not have the exact type of document listed in the RFE?
A6: If the type of evidence requested in the RFE is not a document that is required by regulations, you may submit other similar probative evidence that addresses the issue(s) raised in the RFE. You should explain how the documents you are providing address the deficiency(ies) raised in the RFE. Adjudicators will review and weigh all evidence based on the totality of the circumstances. Please note that you cannot submit similar evidence in place of documents required by regulation.
Q7: Will my petition be denied if I cannot establish that the qualifying employer-employee relationship will exist?
A7: If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you may be given an opportunity to correct the deficiency in response to an RFE. Your petition will be denied if you do not provide sufficiently probative evidence that the qualifying employer-employee relationship will exist for any time period.
Q8: What if I can only establish that the qualifying employer-employee relationship will exist for a portion of the requested validity period?
A8: If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you may be given an opportunity to correct the deficiency in response to an RFE. Your petition may still be approved if you provide evidence that a qualifying employer-employee relationship will exist for a portion of the requested validity period (as long as all other requirements are met). However, USCIS will limit a petitions validity to the time period of qualifying employment established by the evidence.
Q9: What happens if I am filing a petition requesting a Continuation of previously approved employment without change or Change in previously approved employment, and an extension of stay for the beneficiary in H-1B classification, but I did not maintain a valid employer-employee relationship with the beneficiary during the validity period of the previous petition?
A9: Your extension petition will be denied if USCIS determines that you did not maintain a valid employer-employee relationship with the beneficiary throughout the validity period of the previous petition. The only exception is if there is a compelling reason to approve the new petition (e.g. you are able to demonstrate that you did not meet all of the terms and conditions through no fault of your own). Such exceptions would be limited and made on a case-by-case basis.
Q10: What if I am filing a petition requesting a Change of Employer and an extension of stay for the beneficiarys H-1B classification? Would my petition be adjudicated under the section of the memorandum that deals with extension petitions?
A10: No. The section of the memorandum that covers extension petitions applies solely to petitions filed by the same employer to extend H-1B status without a material change in the original terms of employment. All other petitions will be adjudicated in accordance with the section of the memorandum that covers initial petitions.
Q11: I am a petitioner who will be employing the beneficiary to perform services in more than one work location. Do I need to submit an itinerary in support of my petition?
A11: Yes. You will need to submit a complete itinerary of services or engagements, as described in the memo, if you are employing the beneficiary to perform services in more than one work location (in order to comply with 8 CFR 214.2(h)(2)(i)(B)). Furthermore, you must comply with Department of Labor regulations requiring that you file an LCA specific to each work location for the beneficiary.
Q12: The memorandum provides an example of when a beneficiary, who is the sole owner of the petitioning company or organization, would not establish a valid employer-employee relationship. Are there any examples of when a beneficiary, who is the sole owner of the petitioning company or organization, may be able to establish a valid employer-employee relationship?
A12. Yes. In footnotes 9 and 10 of the memorandum, USCIS indicates that while a corporation may be a separate legal entity from its stockholders or sole owner, it may be difficult for that corporation to establish the requisite employer-employee relationship for purposes of an H-1B petition. However, if the facts show that the petitioner has the right to control the beneficiarys employment, then a valid employer-employee relationship may be established. For example, if the petitioner provides evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiarys employment, the petitioner may be able to establish an employer-employee relationship with the beneficiary.
Q13: The memorandum provides an example of when a computer consulting company had not established a valid employer-employee relationship. Are there any situations in which a consulting company or a staffing company would be able to establish a valid employer-employee relationship?
A13: Yes. A consulting company or staffing company may be able to establish that a valid employer-employee relationship will exist, including where the beneficiary will be working at a third-party worksite, if the petitioning consulting or staffing company can demonstrate by a preponderance of the evidence that it has the right to control the work of the beneficiary. Relevant factors include, but are not limited to, whether the petitioner will pay the beneficiarys salary; whether the petitioner will determine the beneficiarys location and relocation assignments (i.e. where the beneficiary is to report to work); and whether the petitioner will perform supervisory duties such as conducting performance reviews, training, and counseling for the beneficiary. The memorandum provides a non-exhaustive list of types of evidence that could demonstrate an employer-employee relationship.
Q14: What happens if I do not submit evidence of the employer-employee relationship with my initial petition?
A14: If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you will be given an opportunity to correct the deficiency in response to an RFE. However, failure to provide this information with the initial submission will delay processing of your petition.
Questions about Same or Similar Occupational Classifications Under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21)
Section 106(c) of AC21, commonly known as the job flexibility provision, was enacted as Immigration and Nationality Act (INA) section 204(j). (http://www.uscis.gov/sites/default/files/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-1272/0-0-0-1430.html) This portion of the INA is provided below for convenience:
A petition under subsection (a)(1)(D) [redesignated as (a)(1)(F)] for an individual whose application for adjustment of status pursuant to section 245 (http://www.uscis.gov/sites/default/files/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-7418.html) has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed.
This section of law allows certain aliens to change or port the offer of employment on which their adjustment of status application is based from one job to another job as long as both jobs are in the same or similar occupational classification. Within these questions and answers, the term port or porting means to change the offer of employment from one job to another job in a way that allows an applicant to remain eligible to adjust status without having to file a new I-140 immigrant petition. For an alien to change the offer of employment, his or her adjustment of status application, Form I-485, must have been pending with USCIS for 180 days or more.
Questions and Answers
Q1. What is an occupational classification?
A1. The Department of Labor (DOL) uses the Standard Occupational Classification (SOC) system to group and classify jobs and occupations. The purpose of the SOC system is to classify workers into occupational categories to organize occupational data. The SOC system covers all occupations where work is performed for pay or for profit. Occupations are categorized based on the type of work performed. Additionally, certain occupations are also classified based on the skills, education and training required to perform the job.
The SOC system is organized using codes, which generally consist of six numerical digits. For example, the SOC code for a stonemason is 47-2022.
• -2022: The first two digits, 47 represent the major group, which includes all construction and extraction occupations.
• 47-022: The third digit, 2 represents the minor group, which includes all construction trade workers.
• 47-22: The forth and fifth digits, 02 represent the broad occupation, which includes brickmasons, blockmasons, and stonemasons.
• 47-202: The sixth digit, 2 represents the detailed occupation, which only includes stonemasons.
47-0000 Construction and Extraction Occupations
47-2000 Construction Trades Workers
47-2020 Brickmasons, Blockmasons, and Stonemasons
No occupation will be assigned to more than one category at the lowest level of the classification (sixth digit). A USCIS memo titled, Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-485 and H-1B Petitions Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) (December 27, 2005 AC21 Memo) (http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/ac21intrm122705.pdf) instructed USCIS officers to consider the Dictionary of Occupational Titles (DOT) (http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/ac21intrm122705.pdf) code as part of the same or similar occupational classification analysis. The DOT has been replaced by the Occupational Information Network (O*NET) under the sponsorship of DOLs Employment and Training Administration (ETA). The O*NET system relies upon the SOC codes.
Q2. How does USCIS determine what qualifies as a same or similar occupational classification?
A2. USCIS generally makes a determination as to whether one job is in the same or similar occupational classification as another by referring to the DOLs SOC system. USCIS officers also consider multiple factors to conclude if two jobs are considered to be in similar occupational classifications for porting purposes (see above question for definition of porting). USCIS officers may compare factors including, but not limited to:
• The job duties of both positions
• The SOC code from the Immigrant Petition for Alien Worker (Form I-140) and the appropriate SOC code for the new position
• The wages associated with each position
USCIS officers will view the totality of the circumstances to determine if the two jobs are the same or similar for porting purposes.
Q3. Does USCIS only use the first two or the first three numbers of the SOC code to determine if two occupational classifications are same or similar?
A3. As noted above, USCIS does not use a simple numerical comparison of SOC codes to determine if two jobs are the same or similar. USCIS aims to determine in all cases whether a new position is in the same or similar occupational classification as the original job offer.
When referring to the SOC system, USCIS will analyze the SOC codes of the two jobs it is comparing. However, there is no hard and fast rule for matching any particular order of digits in two SOC codes.
In the example in Q.1, the 47 encompasses all construction and extraction occupations, which is a broad category and would not determine whether two jobs are similar. In this particular example, even matching additional digits of the SOC codes may not show whether or not two jobs are similar.
For example, the SOC code for a stonemason is 47-2022. The job description for a stonemason is:
Build stone structures, such as piers, walls, and abutments. Lay walks, curbstones, or special types of masonry for vats, tanks, and floors.
The SOC code for a boilermaker is 47-2010, which contains the same first four numbers of the stonemasons SOC code (47-20). However, the job description for a boilermaker is significantly different from that of stonemason:
Construct, assemble, maintain, and repair stationary steam boilers and boiler house auxiliaries. Align structures or plate sections to assemble boiler frame tanks or vats, following blueprints. Work involves use of hand and power tools, plumb bobs, levels, wedges, dogs, or turnbuckles. Assist in testing assembled vessels. Direct cleaning of boilers and boiler furnaces. Inspect and repair boiler fittings, such as safety valves, regulators, automatic-control mechanisms, water columns, and auxiliary machines.
Q4. The December 27, 2005 AC21 Memo states that a discrepancy between the wages of two jobs may be used to decide if the two positions are the same or similar, but the memo also states that a difference in the wages of the two jobs cannot be used as the sole basis for denial in adjustment of status portability cases. Can USCIS provide further explanation on how wages are used to determine whether two jobs are in the same or similar occupational classification?
A4. Section I, Question 3 from the December 27, 2005 AC21 Memo provides USCIS officers with the flexibility to consider a substantial discrepancy in the wages offered in two positions to assist them in deciding if the two jobs are in the same or a similar occupational classification. A substantial discrepancy in the wages of the two jobs may be a contributing factor in a denial when the evidence is considered in its totality. However, a USCIS officer should not deny a case solely because a second position pays more or less than the original.
Section 1, Question 5 from the December 27, 2005 AC21 Memo references a difference in the wages to inform both USCIS officers and the public that a difference in wages should not be used as the sole basis for a denial. This means there can be an allowance for normal raises that occur through the passage of time to account for inflation and other factors such as higher rates of pay in different metropolitan locations.
Q5. Can I accept a different position or receive a promotion from my employer and remain eligible to adjust my status to permanent residence?
A5. USCIS will evaluate these situations on a case-by-case basis. The job duties for each position, the SOC codes for each position, and any differences in the wages will be the determining factors as to whether you remain eligible. Regardless of whether the new job is considered a demotion, a lateral move or a promotion within the company for which the beneficiary is employed, the job duties must be sufficiently similar. USCIS officers will view the totality of the circumstances in light of the congressional intent, expressed in INA section 204(j), as enacted by 106(c) of AC21, to facilitate job mobility within the same or similar occupational classification for qualifying aliens with long-pending adjustment applications.