The H-1B non-immigrant visa is for workers who are coming temporarily to the United States for full-time or part-time employment in a “specialty occupation” (including distinguished models).
Under USCIS regulations, a “specialty occupation” is an occupation that requires theoretical and practical application of a body of specialized knowledge and one or more of the following criteria must be met:
- A bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position being offered;
- The degree requirement is common to the industry or, in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree;
- The employer normally requires a bachelor’s degree or its equivalent for the position; or
- 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 or higher degree.
The foreign worker will have to show:
- Full state licensure, if the job requires a license to practice the specialty occupation in the state;
- Completion of a U.S. bachelor degree or higher degree (or its foreign equivalent) in the specific specialty or related field;
- Education, training, or experience in the specialty fiend that is equivalent to the completion of such a degree. Every three years of progressively responsible experience in an occupation which includes the theoretical and practical application of specialized knowledge required at the professional level is the equivalent of one year of university for purposes of determining education equivalency.
Examples of “specialty occupations” are accountants, engineers, doctors, scientists, architects, teachers, professors, lawyers, management consultants, market research analysts, physical therapists, and fashion models with “distinguished merit and ability.”
Before filing an H-1B petition, the employer first must obtain certification from the Department of Labor that it has filed a labor condition application (LCA) in the occupational specialty in which the alien will be employed.
With this, the employer has to attest that it will pay the foreign worker the greater of the prevailing wage for the occupation in the area of employment, or the actual wage level paid to other employees of the employer with similar experience and qualifications for the same job at the place of employment.
The employer must also attest that it will provide working conditions for the H-1B employees that will not adversely affect other workers similarly employed, including such matters as hours, shifts, vacation periods and fringe benefits.
The employer must attest that there is no strike or lockout in the occupational classification at the place of employment, and provide notice to any bargaining representative, or post notice that a labor condition application has been filed.
Contrary to popular legend, there is no requirement that employers must prove they could not find U.S. workers before hiring H-1B workers.
The H-1B visa may be approved for up to three years, and it can be extended for a total of six years. If an application for permanent residency is submitted at least one year prior to the end of the sixth year, additional yearly extensions may be granted.
If an alien is subject to the six year limitation, he or she may begin a new six year period of H-1B status after leaving the United States for one year.
Spouses and unmarried children under 21 years of age are entitled to H-4 classification with the same period of admission as the H-1B holder. Holders of H-4 status are not entitled to work in the United States unless granted employment authorization through alternate means. IF your spouse or child needs work authorization, please contact our office so we can assess if he/she qualifies on their own merits.
The total number of H-1B visas that may be granted each year is 65,000, and there is an additional set-aside of 20,000 H-1B visas for individuals with a Master’s or higher degree from a United States institution. In addition, some employers, such as academic institutions or their affiliated or related nonprofit entities or nonprofit research organizations, or government research organizations are exempt from this cap and may sponsor H-1B workers even when the cap is reached.
Employer Specific Visa and Change of Employers
The visa petition is filed by the U.S. employer and the work authorization is specific to the employer.
The H-1B is an “employer-specific” visa, which allows the beneficiary to work only for the sponsoring employer. The beneficiary may change employers by having a new employer file an H-1B transfer petition. If the beneficiary os currently employed in H-1B status by another employer, the employee may commence employment immediately with a new employer once a new H-1B petition is filed with USCIS, without waiting for the new H-1B petition to be approved.
Additionally, any changes to the beneficiary’s original employment due to a corporate reorganization, merger, promotion or assignment to a new company location may require an amended petition. If any of the above changes occur, please call our office.
If the employer terminates the foreign worker before the end of the period of authorized stay, the employer will be liable for the reasonable costs of the foreign worker’s return transportation. If the foreign worker voluntarily resigns the position the employer is not responsible for the costs of the return transportation.
Regular processing usually takes three to seven months depending where the petition is filed. However, USCIS offers a Premium Processing service (for an additional $1,225 fee) which ensures processing within 15 business days. If the H-1B beneficiary is residing abroad he or she will have to apply for the actual H-1B visa at the U.S. Consulate before being granted entry into the U.S. Thus, processing times may vary depending on the individual petition.
Free-Trade Agreement H-1B1 Visas
The Free-Trade Agreement H-1B1 visa is available to professionals from Chile and Singapore in “specialty occupations.”
In order to qualify for H-1B1 classification, the applicant must have theoretical and practical application of specialized knowledge and must have at least a U.S. bachelor’s degree or its equivalent and the job sought must require at least a bachelor’s degree or its equivalent.
Unlike the H-1B visa, there is no need for the employer to file an I-129 Petition with the USCIS in the U.S. However, like the H-1B, a prevailing wage needs to be obtained and a Labor Condition Attestation (LCA) needs to be filed.
H-1B1 visas are issued for 18 months and are renewable.
The spouse and unmarried children below the age of 21 of an H-1B1 worker are allowed to accompany this individual as H-4 dependents. However, they cannot work unless they qualify for a work visa. H-4 dependents, however, can enroll and attend schools in the U.S. without obtaining a student visa.