H-1B visa requirements for specialty occupations, DOD workers and fashion models

By Steve Brachmann
March 20, 2016

visa-2The U.S. Department of State recognizes a list of temporary worker visas, each of them designed to enable a different type of worker to cross our borders from overseas, or across the Canadian or Mexican borders. There is the H-2A visa for temporary agricultural workers, the L visa for intracompany transferees or the P-1 for foreign athletes.

In the tech world, the H-1B visa for a person in a specialty occupation has been a heated issue at times. According to the official website for the U.S. Citizenship and Immigration Services (USCIS), the H-1B 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.

Breaking this down further, there are three different categories of visa under the H-1B heading. There is the visa for specialty occupations, which must require at least a bachelor’s degree; be complex enough that only people with a bachelor’s degree can complete the work; positions where the nature of the specific duties is so specialized or complex that the duties are usually associated with a bachelor’s degree level of education; or the employer requires a degree or equivalent for the position. For their part, workers on an H-1B visa must have attained at least a bachelor’s degree from an accredited academic institution; hold a foreign degree equivalent to a U.S. bachelor’s; hold an unrestricted state license, registration or certification authorizing a person to practice the specialty within their state of intended employment; or have education, training or progressively responsible experience in the specialty which is equivalent to the completion of a degree and have recognition of expertise within that specialty.

The DOD can bring in foreign workers for cooperative R&D projects under the H-1B2 visa. Companies can bring over workers on the H-1B2 visa if the job is part of a cooperative research and development project or a co-production project provided for under a government-to-government agreement administered by the DOD, and the job requires at least a bachelor’s degree. Workers are eligible for this visa if they meet one of the same set of criteria for the H-1B visa.

The third category of visa is the H-1B3 visa for fashion models. The position or services rendered must require “a fashion model of prominence.” Eligibility criteria for fashion models seeking the visa requires that they are models of “distinguished merit and ability.” There’s no proof that the H-1B3 visa requirements were written by Mel Brooks, although echoes of his work do exist here.

H-1B and H-1B3 visas require foreign workers to obtain certification of a labor condition application (LCA) filed by the employer with the U.S. Department of Labor (DOL). The LCA requires employers to attest to the wage paid to the foreign worker, which must be the greater of either the typical wage for a position or the prevailing wage in the region. The LCA also requires employers to attest that the working conditions they provide will not adversely affect other workers. Employers violating the terms of the LCA can be fined, sanctioned or barred from using the visa program.

Workers coming over on an H-1B visa may be admitted for three years, extendable up to a maximum of six years. Spouses and unmarried children under 21 of H-1B visa workers may seek H-4 nonimmigrant classification for admission to America during the length of the H-1B visa.

The Author

Steve Brachmann

Steve Brachmann is a writer located in Buffalo, New York. He has worked professionally as a freelancer for more than a decade. He has become a regular contributor to IPWatchdog.com, writing about technology, innovation and is the primary author of the Companies We Follow series. His work has been published by The Buffalo News, The Hamburg Sun, USAToday.com, Chron.com, Motley Fool and OpenLettersMonthly.com. Steve also provides website copy and documents for various business clients.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 5 Comments comments.

  1. james March 20, 2016 4:08 pm

    The H-1B provision requiring the foreign worker be paid the prevailing wage appears to protect American workers from being replaced by cheap labor. It does not. In fact it makes it legal to pay foreign workers less than Americans. In 1776 Adam Smith in his “An Inquiry into the Nature and Causes of the Wealth of Nations” noted that

    “Whenever the law has attempted to regulate the wages of workmen, it has always been rather to lower them than to raise them.”

    The H-1B law regulates low wages with the prevailing wage requirement. Apply what is taught on the first day of Economics 101 to this requirement. If, as is claimed, a skill set is in short supply then in a free market that skill set should command a premium wage not a prevailing or average wage. Yet the employer gets the H-1B on the cheap paying not a premium wage that a short supply would dictate but the lower average wage. This led Nobel laureate Milton Friedman to say

    “There is no doubt, that the [H-1B] program is a benefit to their employers, enabling them to get workers at a lower wage, and to that extent, it is a subsidy.”

    The H-1B law was written not by elected representatives or their staff but by industry lobbyist with the deliberate intent to deceive. As such it contains numerous statements that appear to protect Americans from being replaced by cheap foreign labor without actually doing so. For each item in this article that appears to protect there is a work around that allows employers to ignore it. All of the attestations on the Labor Condition Application (LCA), including the wage paid, are meaningless. The law specifically prohibits the Department of Labor from rejecting an application for any reason other than the LCA is not filled out completely. What gets entered on the form does not matter as long as something gets entered. In the last debate Marco Rubio asserted that Disney broke the law when it replaced its IT staff with Indians. I do not think he was lying. He was just wrong. The H-1B is so convoluted that he as well as many others are deceived into believing the H-1B is both needed and protects American workers.

    Vote Trump!

  2. Silence Dogood March 20, 2016 9:48 pm

    Finally, the secret is out that American’s do not want illegal immigrants and visa guest-workers taking our jobs! We don’t want corporations bringing over millions of Indian guest-workers so that they can have cheap labor and claim Americans can’t or won’t do the work-when we held the jobs and had to train our replacements when we were laid off! We don’t want every city or state giving documentation and driver’s licenses to assist illegal immigrants access to services (free) or employment (our jobs)! We don’t want corporations to be allowed to screw with retirees or anybody else’s pensions that were EARNED, or eliminate retiree heath insurance that was PROMISED! We don’t want to be screwed on our taxes because corporations (so called job creators-NOT) don’t want to pay US\State taxes and they keep Billions of dollars offshore! Corporations are NOT people, American citizens are people!! The signs of this are everywhere, and we shouldn’t have needed Donald Trump to point them out.

    Americans are losing their jobs to mostly visa holding Indians across this country, entire apartment complexes are filled with these guest workers, stores are full of guest workers since Americans can no longer afford to shop after being fired, training their replacements (here and offshore in India). It is as clear as can be what is going on. 

    This is not an immigration comparable to the past, these non-immigrants are being brought over for the single purpose of taking Americans jobs at lower wages. Now visa expansion is the goal of our bought politicians and the corporate lobby; even the trade agreements (TPP) are loaded with language meant to expand foreign guest workers taking what’s left of American jobs. Our representatives say they love America, but they seem to hate Americans.

  3. Gene Quinn March 21, 2016 11:25 am

    James-

    I’m curious why you choose to vote Trump if you have these views about the H-1B visa program? How do you know what Trump believes? On this particular issue, like virtually all others, Trump has been on both sides of the issue and has said diametrically opposite things.

    -Gene

  4. James March 21, 2016 1:10 pm

    Gene,

    You could be absolutely correct. A president Trump may very well change his mind. I am, after all, still waiting for President Obama to re-negotiate NAFTA as he promised to do. The decision before me is one that the academics describe as “Decision Making Under Conditions of Uncertainty” in which he may go another way. I can go with someone who says he is for doing things the way I want or someone who says he will do what I do not want. Thank of it this way: I am given a choice between statesmen with gravitas who say they will give me amnesty, open borders, more free trade outsourcing, and more H-1Bs ( I am a computer programmer and have trained my foreign born replacement twice) on the one hand and John Belushi’s Animal House character Bluto who says he will build a wall, send illegals home, bring jobs home, and end the H-1B. I am going with Bluto. A long shot is better than no shot.

  5. Gene Quinn March 21, 2016 3:47 pm

    James-

    I understand where you are coming from. I personally think Trump has the right message but is the wrong messenger. What a President says has to matter and he is on all sides of all issues even contradicting himself within days, or hours. I don’t know how anyone knows what he believes, or if he even knows the issues. I also don’t get sending someone like that to DC who now says he will negotiate when cutting deals and not standing on principle seems to be the major reason Republicans are fed up with the establishment. A crazy year.

    Be that as it may… I’m drawn to where you say you are a computer programmer and have twice trained your foreign born replacement. Would you have any interest in writing an op-ed or letter to the editor explaining your experiences with H-1B that we could publish on IPWatchdog?

    -Gene