H-1B and Other Specialty Occupation Visas: Answers to Common Employer Questions

Even before the COVID-19 pandemic forced millions of people out of the workforce, many U.S. businesses were facing a talent crisis of another kind — the lack of enough highly-educated, highly-skilled workers to meet their workforce needs. Attributing the 2.8 million jobs currently without workers to fill them to the pandemic alone would be a mistake. The reality is that, despite U.S. businesses investing hundreds of millions of dollars in training and reskilling initiatives, many of those vacant positions require the type of skills, particularly in science, technology, engineering, and math (STEM), that a large portion of the available U.S. workforce currently lacks.

Not having enough workers with these critical skills not only threatens the success of individual businesses but also limits the ability of the U.S. economy to grow in an increasingly competitive global marketplace. Along with programs and initiatives to upskill and reskill U.S. workers, we need to bring more foreign talent into the workforce. One key way to do that is through H-1B, H-1B1, and E-3 specialty occupation visas that help businesses bridge the skills gap and ensure that their companies and our economy continue to thrive. (Read this story for information on other visa programs that might be more applicable to your workforce needs.)

Given the current struggles that companies have in meeting their critical workforce needs, visas for specialty occupation workers are a hot topic among business leaders. But applying for and obtaining these visas for foreign national workers is a complex process. Below are answers to some of the most common questions business leaders have about obtaining these visas.

What types of workers can employers hire under H-1B and E-3 visa classifications?

H-1B and E-3 visas are only available for individuals who will be working in what’s known as a “specialty occupation,” defined as positions for which a U.S. bachelor’s degree in a related field is the minimum educational requirement. An employer must show that the potential worker possesses a U.S. bachelor’s degree (or higher) from an accredited university in the specific specialty occupation or the foreign equivalent thereof. Examples of specialty occupations in which U.S. employers have a very difficult time meeting their workforce needs include software developers, electrical engineers, computer network architects, information security analysts, and electronics engineers, among many others.

Where do businesses begin to apply for a specialty occupation worker?

There are several key differences in the application processes for H-1B and E-3 visas. One critical difference is that businesses interested in obtaining a new H-1B worker must create an account with the U.S. Citizenship and Immigration Services in order to apply for an approved registration under USCIS’s electronic registration system for the annual H-1B lottery. Once a company account is created, employers must then apply for registration to determine whether their company can file a completed H-1B petition for the worker it seeks to hire. The E-3 annual quota is not subject to this type of electronic registration requirement, but E-3 eligibility only extends to Australian nationals.

What is a Labor Condition Application and what do I need to do to file it properly?

Employers seeking to hire an H-1B, an H-1B1, or an E-3 worker must also submit a Labor Condition Application (LCA) to the Department of Labor. These applications require employers to document the wages they will offer the worker, the working conditions that will be provided, and the notice the company provided to its employees about the potential hiring of an H-1B or an E-3 worker.

The required wages that must be paid to an H-1B or an E-3 worker must be the higher of the two between the prevailing wage or the employer’s actual wage paid to similarly employed workers. This wage must be reported to DOL in the LCA. There are multiple sources employers can use to obtain a prevailing wage, but many employers obtain a Prevailing Wage Determination (PWD) from the National Prevailing Wage Center (NPWC). The reason companies do so is because in the event DOL investigates them, DOL will not challenge the validity of the prevailing wage as long as it was applied properly, thus providing the company with additional certainty in avoiding liability for potential violations.

Prior to submitting the LCA to DOL’s Foreign Labor Application Gateway (FLAG) system, the employer must notify U.S. workers of the intent to hire a foreign national for these types of positions. If the employer is a party to a collective bargaining agreement, this requirement may be dispensed with by providing notice to the bargaining representative. If there is no bargaining representative, the employer can provide a hardcopy worksite notice by posting the notice at two conspicuous locations at the job site for 10 days. Alternatively, the employer may provide notice electronically, which can be done via email or posting an electronic bulletin, to ensure that all workers at the place of employment in the occupational classification for which an H-1B, an H-1B1, or an E-3 worker is sought are made aware of the company’s intention to hire the foreign national.

Once I have an approved LCA, what do I do next?

For employers seeking to hire a new worker on an H-1B visa, you must wait until you’ve received a notice of registration approval through USCIS’s electronic registration system before you begin the process of filing a complete I-129 Petition for a Nonimmigrant Worker. Once USCIS has approved your registration, you can then complete the I-129 and the accompanying supplemental forms, and file them with USCIS. Several fees will accompany the filing of the petition.

If you’re seeking an E-3 worker from Australia or an H-1B1 worker from Singapore or Chile, the process to obtain the visa for the worker is somewhat different and can be much less cumbersome. A company can obtain one of these visas for a prospective employee without having to obtain an approved I-129 petition from USCIS. If the prospective worker is outside of the U.S., you need only compile certain paperwork for the individual to bring to his or her consular interview to obtain the visa. This includes evidence that you have offered the individual a job in a specialty occupation, the individual has the required educational credentials for the job, and your company has received an approved LCA from DOL for the individual. This process is generally much easier and less time-consuming than the H-1B petition process, but this advantage must be weighed against certain limitations associated with the H-1B1 and E-3 visa classifications, which are described below.

Are there quotas for H-1B and E-3 visas?

Each year, the number of H-1B visas that can be issued to new H-1B workers is capped at 65,000. Of that total, 6,800 visas are set-aside for foreign nationals from Chile and Singapore who seek H-1B1 visas. There are 1,400 H-1B1 visas reserved annually for Chilean nationals, while the remaining 5,400 H-1B1 visas are set aside for Singaporean nationals.

Apart from the quota of 65,000 new workers, there are an additional 20,000 H-1B visas that are made available each year for individuals who have graduated from a U.S. college or university with a Master’s Degree or higher. This brings the overall total of cap-subject H-1B visas each year to 85,000.

The annual quota for new E-3 visa issuance is set at 10,500. This quota does not count the number of E-3 visas that are issued to the dependent spouse and children of the principal E-3 worker. Nevertheless, the smaller numerical limits for H-1B1 and E-3 are clearly considerations that must be thought through as your company decides which specialty occupation visa options are optimal for their business’s needs.

Aside from the educational requirements, what makes H-1B and E-3 visas different from other nonimmigrant visa programs?

There are many other nonimmigrant visa programs available to help businesses meet their workforce needs. However, one benefit of employing someone as an H-1B worker is that it is relatively easy for businesses to seek permanent resident status for that worker, should they want to employ them on a permanent basis. This is due in large part to the legal concept of “dual intent” that allows an individual to maintain their H-1B nonimmigrant (temporary) status, even though they may desire to stay in the U.S. permanently.

Generally, an H-1B worker can be employed in the U.S. for a maximum period of 6 years on their visa and upon the expiration of their status, they must leave the U.S. for a year before they can obtain a new H-1B visa. However, if an employer decides that it wants to employ that individual on a permanent basis, they can seek permanent resident status for that worker and can continue extending their H-1B worker’s status while they wait to receive their green card.

A key distinction between the H-1B and the H-1B1 is that the concept of “dual intent” does not extend to the H-1B1 classification, thus making it much more difficult for H-1B1 visa holders, and their employers, to obtain permanent resident status for that worker. The E-3 classification bears many similarities to the H-1B1, as an employer of an E-3 worker has the same limitations on accessing permanent resident status. On the other hand, E-3 employers can indefinitely extend the status of those workers. This is a unique benefit that is not available to employers that utilize other nonimmigrant visa classifications to meet their workforce needs. Nevertheless, if your company decides that it wants to employ a specialty occupation worker on a permanent basis, the H-1B classification has a clear advantage over both the E-3 and H-1B1 visa options.

What else do I need to know?

Obtaining H-1B, H-1B1, or E-3 visas for prospective workers can be difficult, especially for employers with little experience in these matters. The guidance and insight companies receive from their immigration counsels can be the difference maker between meeting your workforce needs or not. It is critically important that you choose your legal representation in these matters wisely.