Specialty Occupations (H-1B, H-1B1, and E-3 Temporary Programs)

For Employers Using Foreign Labor in Specialty Occupations and as Fashion Models

H-1B

• The H-1B program allows an employer to temporarily employ a foreign worker in the U.S. on a nonimmigrant basis in a specialty occupation or as a fashion model of distinguished merit and ability. A specialty occupation requires the theoretical and practical application of a body of specialized knowledge and a bachelor's degree or the equivalent in the specific specialty (e.g., sciences, medicine and health care, education, biotechnology, and business specialties). Current laws limit the annual number of qualifying foreign workers who may be issued a visa or otherwise be provided H-1B status to 65,000 with an additional 20,000 under the H-1B advanced degree exemption. For additional information regarding the H-1B cap, cap qualifications and H-1B petitions, see the U.S. Citizenship and Immigration Services (USCIS) website.

H-1B1

• The H-1B1 program allows employers to temporarily employ foreign workers from Chile and Singapore in the U.S. on a nonimmigrant basis in specialty occupations. Current laws limit the annual number of qualifying foreign workers who may be issued an H-1B1 visa to 6,800 with 1,400 from Chile and 5,400 from Singapore. For information regarding the H-1B1 cap, H-1B1 cap qualifications and H-1B1 petitions, see the USCIS website or Consular sections of the Department of State website for Chile and or Singapore.

E-3

• The E-3 program allows employers to temporarily employ foreign workers from Australia in the U.S. on a nonimmigrant basis in specialty occupations. Current laws limit the annual number of qualifying foreign workers who may be issued an E-3 visa to 10,500 Australian nationals seeking temporary work in specialty occupations. For information regarding the E-3 cap, E-3 cap qualifications and E-3 petitions, see the USCIS website or Consular sections of the Department of State website for Australia.

Regulations

• 20 CFR Part 655 Subpart H

How and When to Apply

• Prior to filing a petition with the U.S. Citizenship and Immigration Services or obtaining a visa through the Department of State , employers must submit a Labor Condition Application (LCA/Form ETA-9035E/9035) to the Department of Labor attesting to compliance with the requirements of the H-1B, H-1B1 or E-3 program.
• LCAs must not be submitted more than 6 months before the beginning date of the period of employment.
• LCAs must be filed electronically with the Department through the FLAG System .
  The two exceptions to electronic filing are employers with physical disabilities or those who lack Internet access and cannot electronically file the Form ETA-9035E through the FLAG System. Before filing an LCA by mail on the Form ETA-9035 , an employer must first petition the Administrator of OFLC for special permission to do so.

What to Submit to the Department of Labor

• The H-1B, H-1B1 and E-3 programs are attestation based programs.
• The employer submits a Labor Condition Application (Form ETA-9035E [electronic]) to the Department through the FLAG System unless the employer is permitted to file by mail.
• The employer attests to the truthfulness and accuracy of the information entered on the LCA. The burden of proof is on the employer to establish the truthfulness of the information contained on the LCA.
  

For links to additional information, answers to frequently asked questions and complete details on processing labor certification requests under the H-2B Regulations, visit USDOL H-1B Labor Certification.