The petition is the employer's, not the worker's. The labour condition application, the specialty showing and the wage level produce the denials.
Reviewed by Ekaterina Fitenko, Esq. — Florida Bar #1064536. With 20+ years of experience in the legal field, she represents Russian- and Ukrainian-speaking clients in employment and investor visa cases, in English and Russian.
An H-1B is filed by the employer on behalf of the worker, and the obligations that come with it — wage, working conditions, record-keeping — attach to the employer. Candidates often arrive believing they hold the case. They do not, and the distinction determines who bears the consequences of a defect in it.
Before the petition is filed, the employer obtains a labour condition application certified by the Department of Labor. In it the employer attests to paying at least the required wage, to working conditions that will not adversely affect other workers, to the absence of a strike or lockout, and to having given notice of the filing.
These attestations are enforceable. An LCA prepared as a formality creates exposure that surfaces long after the visa is granted, in an audit rather than in an adjudication.
The position must require the theoretical and practical application of a body of highly specialized knowledge, and attainment of at least a bachelor's degree or its equivalent in a specific specialty. Two parts of that sentence do the work: the requirement must belong to the position, not to the preferences of the employer, and the degree must be in a specific field rather than any degree at all.
Denials cluster where the job description is generic, where the degree requirement is stated as "bachelor's degree in any field", or where the duties described do not match the wage level claimed.
The wage level selected has to be consistent with the duties described. A junior wage level attached to a role described in senior terms is a contradiction inside the employer's own filing, and it is read as one. Choosing the level to reduce cost is the most common self-inflicted problem in these cases.
Most H-1B petitions are subject to an annual numerical limit reached through a registration process, and preparation for it belongs to the autumn rather than to the weeks before registration opens. Certain employers — including qualifying institutions of higher education and affiliated nonprofit and research organisations — are cap-exempt, which changes the timetable entirely.
The employer. The petition and the obligations attached to it — wage, working conditions, record-keeping — belong to the employer, not to the worker.
The labour condition application, certified by the Department of Labor before the petition is filed. In it the employer attests to the required wage, working conditions, absence of a strike or lockout, and notice of the filing.
It must require theoretical and practical application of highly specialized knowledge and at least a bachelor's degree or equivalent in a specific specialty. A requirement of any degree in any field does not satisfy it.
Not without consequence. The wage level must match the duties described, and a junior level attached to senior duties is a contradiction within the employer's own filing.
No. Qualifying institutions of higher education and affiliated nonprofit and research organisations are cap-exempt, which removes the registration timetable and changes when a case can be filed.
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This article is informational only and is not legal advice. Immigration rules, fees and processing times change; confirm current requirements with the agency or with counsel before relying on anything here.
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