The H-1B visa program applies to employers seeking to hire nonimmigrant aliens as workers in specialty occupations or as fashion models of distinguished merit and ability. A specialty occupation is one that requires the application of a body of highly specialized knowledge and the attainment of at least a bachelor’s degree or its equivalent. The intent of the H-1B provisions is to help employers who cannot otherwise obtain needed business skills and abilities from the U.S. workforce by authorizing the temporary employment of qualified individuals who are not otherwise authorized to work in the United States.

The law establishes certain standards in order to protect similarly employed U.S. workers from being adversely affected by the employment of the nonimmigrant workers, as well as to protect the H-1B nonimmigrant workers. Employers must attest to the U.S. Department of Labor that they will pay wages to the H-1B nonimmigrant workers that are at least equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the job in question, or the prevailing wage for the occupation in the area of intended employment—whichever is greater.

In New York, as in all states, the H-1B visa program is governed by federal law, specifically the Immigration and Nationality Act (INA). The program allows employers in New York to temporarily employ foreign workers in specialty occupations. A specialty occupation requires the theoretical and practical application of a body of highly specialized knowledge, typically evidenced by a bachelor's degree or higher in the specific specialty. New York employers seeking to hire H-1B workers must comply with the requirements set by the U.S. Department of Labor and U.S. Citizenship and Immigration Services (USCIS). This includes submitting a Labor Condition Application (LCA) to the Department of Labor, attesting that they will pay the H-1B worker a wage that is no less than the wage paid to similarly qualified workers or the prevailing wage for the position in the geographic area, whichever is higher. Additionally, they must ensure that employing H-1B workers will not adversely affect the working conditions of U.S. workers similarly employed. The intent of these regulations is to protect both U.S. and H-1B workers. Employers in New York must also be aware of any state-specific employment laws that may apply to all workers within the state, regardless of their immigration status.