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 An H-1B Visa (Specialty Occupation) is a non-immigrant visa that is available to a foreign national who has been offered a job by a United States company for services to be performed in the United States. H-1B Visas are available to workers in specialty or professional occupations. It allows Beneficiary to stay and work in the U.S. for an initial period of three years, but not to exceed six years. H-1B Visa holders can travel in and out of the United States, when it has been granted by a United States Consulate. Spouses and unmarried children under the age of 21 may receive visas as well.
Architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations who qualify for H1-B visa.
Every year 65,000 visas are issued under H1-B category. This cap is only if you are first time applying for H1-B visa. Not every H-1B applicant is subject to the cap. Visas will still be available for applicants filing for amendments, extensions, and changes of employers. The cap also does not apply to applicants filing H-1B visas through institutions of higher education, nonprofit research organizations, and government research organizations. Physicians taking jobs under State 30 or federal government agency waivers based on serving underserved communities are exempt from the H-1B cap.
In an H-1B visa application, the U.S. employer files the Petition on behalf of the foreign bases employee. After an offer of employment has been made, the petition process begins. The first step is for the petitioner to ensure that the worker will be paid the prevailing wage for the occupation in the geographic area where the beneficiary will be employed. The employer must also be sure that it is not paying less than the actual wage paid to its other employees with similar qualifications. The prevailing wage can be obtained from the Foreign Labor Determination Center (FLDC) or by filing a request for a prevailing wage determination with the state workforce agency.
It can also be determined through a private wage survey. The benefit of relying on the FLDC or a prevailing wage determination is that it cannot be challenged later by the U.S. Department of Labor.
Once the wage information has been obtained, a Form ETA 9035 Labor Condition Application (LCA) must be submitted to the U.S. Department of Labor. On this form, the employer must submit the wage to be paid, the prevailing wage, and must make certain attestations.
The certified LCA is submitted to USCIS as part of the H-1B petition package along with documentation of the beneficiary’s qualifications, the petitioner’s type of business, and the type of work the beneficiary will be performing.
Within one business day of filing the LCA, the employer must establish a public access file that may be viewed by any person. This file must include a copy of the LCA, a statement of the actual wage received by the H-1B worker, the prevailing wage and its source, whether the state or a private survey was used, a memo from the employer explaining the actual wage determination, and evidence that the LCA has been filed.
In addition, the employer must keep other information that need not be made available to the public. This includes payroll data for all employees in the same occupations as the H-1B worker, a calculation of the actual wage paid to the H-1B worker, the raw data behind the prevailing wage determination.
Under current law, an individual can be in H-1B status for a maximum period of six years at a time. After that time an individual must remain outside the United States for one year before another H-1B petition can be approved.
Once approved, an LCA is valid for three years.
Obtaining an LCA is only the first step in the H-1B process. The application for an H-1B visa must present evidence that will convince USCIS of three basic truths:
- The employer has a legitimate need for a “specialty occupation worker”
- The position offered is in a “specialty occupation”
- The prospective employee is qualified for the position
H-1B visa holders may work for more than one U.S. employer, but must have a Form I-129 petition approved by each employer.
An H-1B visa allows an individual holding that status to reenter the U.S. during the validity period of the visa and approved petition.
An H-1B visa holder can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident (LPR) status without adversely affecting his or her H-1B status. This is known as "dual intent" and has been recognized in the immigration law since passage of the Immigration Act of 1990.
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