TO THE LAW OFFICE OF JIAN X. KANG
SUMMARY OF THE LAW ON H-1B WORK VISA
(Special Occupation Employee)
The Immigration and Nationality Act (INA) Section 101(a)(15)(H)(i)(b) provides for the granting of an H-1B nonimmigrant classification to an alien
who is coming temporarily to the United States to perform services . . . in a specialty occupation described in section 214(i)(1) [see below] . . .
who meets the requirements for the occupation specified in section 214(i)(2) [See below]. . . and
with respect to whom the Secretary of Labor determines and certifies to the Attorney General that the intending employer has filed with the Secretary an application under section 212(N)(1)[See below].
INA Section 214(i)(1) defines the term "specialty occupation" to mean "an occupation that requires (A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor (or its equivalent) or higher degree in the specific specialty as a minimum for entry into the occupation in the United States. Title 8, C.F.R.Section 214(h)(4) further defines "specialty occupation" to mean "an occupation which requires theoretical and practical application of a body of highly specialized knowledge in the 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?degree or higher in a specific specialty or its equivalent, as a minimum for entry into the occupation in the United States."
INA Section 214(i)(2) provides that the requirements for a specialty occupation are (A) full state licensure to practice in the occupation, if such licensure is required to practice in the occupation, (B) completion of the degree described in paragraph (1)(B) for the occupation, or (C) (i) experience in the specialty equivalent to the completion of such degree, and (ii) recognition of expertise in the specialty through progressively responsible positions relating to the specialty.
Labor Condition Application: INA Section 212(N)(1) (1) requires that, among other things, every H-1B work visa petition must be accompanied with a Labor Condition Application certified by the Secretary of Labor stating the employer
is offering and will offer during the period of the H-1B employee's authorized employment wages that are at least (I) the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or (II) the prevailing wage level for the occupational classification in the area of employment, whichever is greater, based on the best information available as of the time of filing the application, and
212(n)(1)(A)(ii) will provide working conditions for such a nonimmigrant that will not adversely affect the working conditions of workers similarly employed.
In addition, the Dictionary of Occupational Titles (DOT) (4th Edition, 1991) and the Occupational Outlook Handbook, (OOH), both prepared by the Bureau of Labor Statistics, U.S. Department of Labor, define almost all the possible job titles and their educational requirements, working conditions, wage surveys, and the duties and responsibilities for each job.
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Jian X. Kang
Attorney at law
LAW OFFICES OF JIAN X. KANG
7670 OPPORTUNITY ROAD, SUITE 225, SAN DIEGO, CA 92111