The H-1B visa provides the opportunity for foreign professionals to work in the United States. It allows employers to hire qualified foreign workers in the U.S. in specialty occupations on a temporary basis. The foreign professional has the possibility to obtain a U.S. position based on his/her acquired skills. In order to be eligible for the H-1B Visa, the U.S. employer and potential employee are obligated to adhere to the USCIS conditions and regulations. The H-1B visa requirements strive to ensure that the U.S. employer and foreign professional comply with the Department of Labor standards. A major part of this compliance is filing for a Labor Condition Application (LCA).
H-1B Visa Process
Once the USCIS approves the H-1B petition filed by the employer, the foreign worker can then get the H-1B Visa stamped at a U.S. embassy abroad or change status if he/she is already present in the U.S. The H-1B visa is granted for an initial 3 years period unless listed as a Chile or Singapore national. There are additional H-1B Visa requirements that must be followed by both petitioner (employer) and beneficiary (employee).
The H-1B visa process involves two major factors: the sponsorship by a U.S. employer and petitioning with the USCIS. The applicant must have a U.S. employer to start the process. When the potential H-1B holder finds a U.S. employer who is eligible and willing to file an H-1B visa on his/her behalf, the employer must receive a labor certification application and submit an H-1B petition to the USCIS.
- If the petitioner is obtaining attorney representation or H-1B lawyer, the petitioner must file a G-28 form. The G-28 should have all sections of the form completed. This entails a signature and printed name of the attorney and the signature of the petitioner.
- The U.S. employer is required to submit Form ETA-9035 (Labor Condition Application). The Labor Condition Application is mandated to be filed online through the Department of State’s iCert Portal System.
- The employer must have received an approval of the Labor Condition Application before filing the I-129 form. After approval, the employer is obligated to file a Form I-129 (Petition for a Nonimmigrant Worker), filing fee, supplementary documentation, and the approved Labor Certification Application.
- The I-129 must have a completed H Classification supplement which is located on pages 11 and 12 of the form.
- The petitioner is required to ensure proper completion of the H-1B Data Collection and Filing Fee Supplement. H-1B Data Collection and Filing Fee Supplement is on pages 17-19 on the Form I-129.
- If the petitioner wishes to request for Premium Processing, form I-907 must be completed. Premium processing requires a $1,410 filing fee in a separate check/money order, an I-129 receipt, and Form I-907. The I-907 is a Request for Premium Processing Service. This is filed after submitting form I-129.
H-1B Visa Requirements:
- Position Requirements
- The job offered must be filed as a “specialty occupation.” A specialty occupation orders for a bachelor’s degree or an advanced level of education certification. There are distinct positions that may not mandate a bachelor’s degree due to the complexity or particular listed duties. However, most positions categorized under ‘professional’ require a bachelor’s degree.
- Examples of qualified positions: engineers, professors, researchers, medical, accountants, attorneys, and architects. Click here for more details on position requirements
- Education Requirements
- The bachelor’s or advanced degree must originate from an accredited university or college. The degree is required to relate to the H-1B specialty position. If the degree was obtained outside the United States, it must be equivalent to an available U.S. degree.
- Work experience is not a pre-requisite if holding a bachelor’s degree. Education requirements may be substituted with at work experience. The general rule for the amount of accepted work experience: 1 year required of University = 3 years of work experience. Click here for more details on applicant’s education/experience requirements
- Department of Labor and USCIS Requirements
The H-1B visa requirements also entail the employer to submit an I-129 form to the USCIS once the DOL certifies the LCA.
- Prevailing Wage Determination. This is a determined average wage paid to U.S. employees in similar fields. The foreign professional must receive at least the given prevailing wage.
- Employment of the foreign professional will not affect U.S. working conditions in similar fields.
- Employer is obligated to internally post notice of filing for H-1B.
- There cannot be an existing strike/layoff/lockout within the intended field
- Employer must be compliant with public examination processes
- If the employer terminates the foreign professional’s employment before designated time, the employer must pay the expenses associated with transportation back to the home country.
- The employer is not authorized to grant the foreign professional employment until the USCIS indicates approval.
- U.S. Employer Requirements
- It is required to have the funds necessary to pay the foreign professional
- The employer must provide an official job offer. An official job offer signifies that documented evidence can be presented to show a true business need.
Every fiscal year, the H-1B visa is limited by an annual cap of 65,000 visas. However, there are some applicants that are exempt from the cap. Beneficiaries with a U.S. masters degree or higher are exempt from the cap if it is filed among the first 20,000 petitions available. Also, if the H-1B worker is employed or petitioned on behalf of an institute of higher education it is not subject to the H-1B cap. Related nonprofit entities, nonprofit research, and government research organizations are H-1B cap-exempt.
The spouse and unmarried children of the H-1B visa holder have the option of admission through the H-4 visa. However, members on the H-4 visa are not authorized to work in the United States.
H-1B Period of Stay
As an H-1B non-immigrant worker, you may be admitted for a period of up to three years. Your time period may be extended, but generally cannot go beyond a total of six years, though some exceptions do apply under sections 104(c) and 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21).
Your employer will be liable for the reasonable costs of your return transportation if your employer terminates you before the end of your period of authorized stay. Your employer is not responsible for the costs of your return transportation if you voluntarily resign your position. You must contact the Service Center that approved your petition in writing if you believe that your employer has not complied with this requirement.
Why select our H-1B Visa Lawyers:
- Dedicated Immigration practice with specialization in business and employment immigration.
- Great track record of success in complex new H-1B and transfer/extension cases, including those filed by small employers (<50 employees).
- Efficient and Accessible H-1B Immigration Lawyers.
- Highly competitive Flat Fee for H-1B filing.
- Timely filing of H-1B Visa petitions and our commitment to provide you regular updates.
We offer Free Consultations to certain qualified H-1B clients, allowing you to speak with our experienced H-1B visa lawyers. Contact us to learn how we can help you get an approval of your H-1B petition in a timely and efficient manner.
H-1B Attorney Fee
We charge a flat H-1B visa attorney fee of $2,100, which includes shipping and incidentals but does not include RFE responses, if applicable. In addition, you are responsible for the USCIS filing fees associated with your case. If after your initial consultation, you decide that an H-1B visa is not a suitable course of action, we offer a range of other immigration options.
Learn more about H-1B visa processing fees.
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