The H-1B visa is the most common visa used by employers in the United States to employ foreign nationals. The H-1B nonimmigrant visa category allows U.S. employers to augment the existing labor force with highly skilled temporary workers. The H-1B visa is a nonimmigrant classification used by a foreign national who will be employed temporarily in a specialty occupation, or as a fashion model of distinguished merit and ability.
The H-1B Visa allows a U.S. employer to fill a position requiring the minimum of a bachelor’s degree in the particular field with a qualified worker from abroad. The foreign worker must possess at least a bachelor’s degree or its equivalent. In some cases, a combination of studies and relevant experience may substitute for the degree requirement.
A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor's degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.
Requirements and Qualifications
The petition should be filed by the U.S. employer with the following documentation:
A certified labor condition application (LCA) from the Department of Labor;
Copies of evidence that the proposed employment qualifies as a specialty occupation;
Evidence the alien has the required qualifications by submitting either:
A copy of the person's U.S. baccalaureate or higher degree which is required by the specialty occupation;
A copy of a foreign degree determined to be equivalent to the U.S. degree; or
Copies of evidence of education and experience which is equivalent to the required U.S. degree;
A copy of any required license or other official permission to practice the occupation in the state of intended employment; and
A copy of any written contract between the employer and the alien or a summary of the terms of the oral agreement under which the alien will be employed.
Labor Condition Application
The first step to hiring most H-1B workers from outside the U.S. is for the employer to file a labor condition application (LCA) with the Department of Labor (DOL) in the region where the foreign national will work. Then the employer is required to file the LCA approval notice with the I-129 petition.
The LCA requirement shall be satisfied when the employer signs Form ETA 9035 or 9035E attesting that, for the entire period of authorized employment, the required wage rate will be paid to the H-1B nonimmigrant. In other words, the wage shall be the greater of the actual wage level paid to all other individuals similarly employed at the place of employment, or the prevailing wage for the occupation in the area of employment is based on applicable wage surveys. The wage requirement includes the employer's obligation to offer benefits and eligibility for benefits provided as compensation for services to H-1B nonimmigrants on the same basis, and in accordance with the same criteria, as the employer offers to U.S. workers.
If the position being offered is a union position, a notice must be provided to the bargaining representative if any, or posted a notice that a labor condition application has been filed. The notice must be posted in two or more conspicuous places for a ten-day period and shall contain specific information. Additionally, there must not be a strike or lockout in the occupational classification at the place of employment
Terms and Conditions of Visa
Some terms and conditions of the H-1B classification:
Work authorization for H-1B foreign specialty workers is employer-specific (i.e. limited to employment with the approved employer/petitioner).
A change of employer requires a new H-1B petition; under some circumstances, a nonimmigrant who was previously issued an H1-B visa or provided H1-B nonimmigrant status may begin working for a new H1-B employer as soon as the new employer files a “nonfrivolous” H-1B petition for the nonimmigrant. Multiple employers require multiple H-1B petitions.
The employer is responsible for return transportation costs for an employee terminated prior to the end of the approved period of employment.
H-1B foreign specialty workers are not required to maintain foreign residence and may seek permanent residence in the U.S.
Numerical Limits
The current law limits the number of H-1B foreign nationals to 65,000 (this number was reached on the first day of the 2004 fiscal year). Petitions for positions starting on or after October 1, of a fiscal year may be submitted up to 180 days ahead of the requested start date. In other words, applications for the next quota of H-1B visas (excluding the new 20,000 slots) will be accepted beginning in April 2005.
Effect of H-1B Cap on Current H-1B Foreign Nationals
Due to high demand of H-1B visas the Immigration Department put a cap on the visas. The USCIS has stated that the limit on the number of H-1B visas does not apply to persons that are already in H1-B status.
Visas will still be available for applicants filing for amendments, extensions, and transfers. The cap also does not apply to applicants filing H-1B visas through institutions of higher education, nonprofit research organizations, and government research organizations.
However, if a person who currently holds an H-1B visa leaves an employer and waits more than 30 days to apply for a new H-1B visa, the cap would apply again. Also, if a person who works for a cap-exempt employer and then switches to an employer that is not exempt, the cap will apply.
Advance Degree Exemption
The H-1B Visa Reform Act of 2004, which took effect on May 5, 2005, changed the H-1B filing procedures for the 2005 fiscal year and for future fiscal years. The Act also makes available 20,000 new H-1B visas for foreign workers with a master’s or higher level degree from a U.S. academic institution.
Duration of Stay Under H-1B Visa
A foreign national can be granted an H-1B visa for maximum of six years, in three year increments. H-1B workers are admitted to the United States for an initial period of three years, which may be extended for an additional three years. A foreign national can reapply under the H-1B category after leaving the country for 1 year.
Travel Outside of U.S
Generally, a foreign national can leave and re-enter the U.S during the validity period. Premium Processing for H-1B Petitions
An employer can request premium processing which requires the USCIS to adjudicate the petition within 15 calendar days. The fee for premium processing is $1,000 USD. If the USCIS fails to respond within 15 calendar days, it will refund the $1,000 fee and continue to process the petition under the expedited process.
Dependents
Dependents (spouses and unmarried children under 21 years of age) of H-1B workers are eligible for H-4 status with the same restrictions as the principal. Dependents may not be employed under the H-4 classification.
H-1B2 Research and Development Project
The H-1B2 category applies to an alien coming temporarily to perform services of an exceptional nature relating to a cooperative research and development project administered by the Department of Defense.
RequirementsforH-1B2
The petition should be filed by the U.S. employer with the following documentation:
A description of the proposed employment and evidence the services and project meet the above conditions; and
A statement listing the names of all aliens who are not permanent residents who have been employed on the project within the past year, along with their dates of employment.
Note: this category does not require an LCA.
H-1B3 Fashion Model
The H-1B3 category applies to a fashion model that is nationally or internationally recognized and will be employed in a position requiring someone of distinguished merit and ability.
Requirements for H-1B3 Fashion Model
The petition should be filed by the U.S. employer with the following documentation:
A certified LCA from the Department of Labor;
Copies of evidence establishing that the alien is nationally or internationally recognized in the field of fashion modeling. The evidence must include at least two of the following types of documentation which show that the person:
Has achieved national or international recognition in his or her field as evidenced by major newspaper, trade journals, magazines or other published material;
Has performed and will perform services as fashion model for employers with a distinguished reputation;
Has received recognition for significant achievements from organizations, critics, fashion houses, modeling agencies or other recognized experts in the field; and
Commands a high salary or other substantial remuneration for services, as shown by contracts or other reliable evidence.
Copies of evidence establishing that the services to be performed require a fashion model of distinguished merit and ability and either:
Involve an event or production which has a distinguished reputation; or
The services are as participant for an organization or establishment that has a distinguished reputation or record of employing persons of distinguished merit and ability.
Other Frequently Asked Questions
Who can foreign national in H-1B status work for?
An H-1B foreign national must work for the petitioning U.S employer, and only H-1B activities described in the petition. The employee can work for more than one employer, or transfer their H-1B visa to another employer as long as the appropriate petitions have been filed with the USCIS.
Why is the H-1B Visa used for most Foreign Nationals?
One of the main attractions of the H-1B visa category is that the employer does not need to demonstrate that there is a shortage of qualified U.S workers through the tedious labor certification process;
Another important Advantage is that the H-1B visa allows a foreign national to have a “dual intent”. This means that a foreign national can have the intent to become a permanent resident while in the U.S. under a temporary work visa.
Can I get a Green card while on an H-1B visa?
In order to obtain permanent residency while on an H-1B visa, your employer must file the appropriate applications with the Department of Labor and Immigration Services, with several required documentations, but there are legal issues as well as many practical issues of which one should be aware. A consultation with an attorney is a good idea.
Diversity Lottery
Employment-Based