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Labor Condition Application for H-1B Professional Workers

Posted by Ann Badmus | Sep 27, 2012 | 0 Comments

In order for a prospective employer to hire a foreign physician under the H-1B professional worker visa program to fill a vacant position, the position must meet one of the following requirements to qualify as a specialty occupation:

  1. Bachelor's or higher degree, or its equivalent; or . . .
  2. The degree requirement for the position is common to the industry, or the job can only be performed by an individual with a degree due to its complexity or uniqueness; or . . .
  3. The employer normally requires a degree or its equivalent for the position; or . . .
  4. The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's degree or higher.

In order for the foreign physician to qualify to accept a job offer, one of the following requirements must be met:

  1. They must have completed a U.S. bachelor's or higher degree required by the specific specialty occupation from an accredited college or university; or . . .
  2. They must hold a foreign degree that is the equivalent to a U.S. bachelor's degree or higher in the specialty occupation; or . . .
  3. They must hold an unrestricted state license, registration, or certification which authorizes them to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment; or . . .
  4. They must have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

An H-1B foreign physician can be admitted to the U.S. for a period of up to three years. This time period can be extended, though generally not beyond a total of six years (some exceptions do apply under AC21, the American Competitiveness in the Twenty-First Century Act). If the employer terminates the foreign physician's employment before the end of their period of authorized stay, the employer will be liable for the reasonable costs of the foreign physician's return transportation. The employer is not responsible for the costs of return transportation if the foreign physician voluntarily resigned their position. (If an employee believes their employer has violated this requirement, they must contact the Service Center that approved their petition, in writing.)

Application Process

  1. The employer must submit an LCA to DOL for certification.
  2. The employer must then submit a completed form I-129 (Petition for Nonimmigrant Worker) to USCIS. The form must be mailed to the correct USCIS service center (see here). The DOL-certified LCA must be submitted with form I-129.
  3. Once the Form I-129 petition has been approved, the foreign physician who is outside the United States may apply with 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 foreign physician must then apply to U.S. Customs and Border Protection (CBP) for admission to the United States in H-1B classification.

It is important for prospective employers to be aware that the LCA includes certain requirements which, if violated, can result in fines, bars on sponsoring nonimmigrant or immigrant petitions, and other sanctions. The application requires the employer to attest that:

  1. They will pay the foreign physician a wage equal to or above the prevailing wage for the position (as discussed in the previous blog post),
  2. They will provide working conditions that will not adversely affect other similarly employed workers.
  3. There is no strike or lockout at their place of business at the time the LCA application was filed.
  4. They notified the union bargaining representative, if any, that an LCA was filed with DOL or posted a copy of the LCA at the work location of the H-1B employee.

H-1B Cap

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. master's degree or higher are exempt from the cap.  Additionally, H-1B foreign physicians are exempt from this cap if a petition was filed on their behalf, or if they were employed by, an institution of higher education or its affiliated or related nonprofit entities, or a nonprofit research organization, or a government research organization.

For more information on this subject, please see the article H-1B Facts for Foreign Physicians Part 1: Numerical Limitations and “Cap Exemptions”.

About the Author

Ann Badmus

Principal and Managing Attorney


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