H-1B Visa Information: Temporary Employment of Foreign Workers in “Specialty Occupations”

The H-1B visa is a temporary visa that permits U.S. businesses to employ skilled foreign workers for several years at a time. 

Requirements: To qualify for the visa, we must prove all of the following:

  1. The worker must show that he or she has a university degree or a combination of education and work experience that is equivalent to a university degree (the rule of thumb is three years of work experience equal one year of university education).
  2. The employer must show that the position the worker will fill qualifies as a “specialty occupation.” A “specialty occupation” is defined as a position for which the minimum entry requirement to work in the position is a bachelor’s or higher degree in a subject related to the position.  Some examples of “specialty occupations” are engineers, computer programmer/analysts, teachers, technical writers, and market research analysts.
  3. The employer must agree to pay the prevailing wage for the specialty occupation in the area of employment. The prevailing wage is usually determined by using a government wage survey.

The H-1B Visa permits part-time or full-time employment.  But, the visa is employer specific.  This means that the worker only receives permission to work for the sponsoring business.

The employer can be a new or small business.  The foreign worker is permitted to own all or part of the business.  However, the government may require additional forms of evidence in these cases, such as proof that the business can afford to pay the foreign worker and proof that the business really needs the services of a worker with a degree.

The U.S. government limits the number of new H-1B Visas per year.  The current limit is 65,000 per year.  This number does not include H-1B Extensions or Amendments of H-1B Status, only new H-1B Visas are counted. 

Certain new H-1B Visas are not counted toward the 65,000 total.  These include jobs connected with universities and research facilities, workers with a Master’s or higher degrees from a U.S. university, and some other special cases.  When the government has used all of the 65,000 new H-1B Visas for the year, new H-1B visas are not available until the start of the government’s next fiscal year (which begins in October). 

The spouse and children under 21 may live in the U.S. with the foreign worker.  They will have H-4 status.  With H-4 status, attending any school (public or private) is permitted.  However, no employment is permitted.

Duration of H-1B Visa: The foreigner worker will initially receive permission to live and work in the U.S. for three years.  It is possible to extend the visa for another three years for a total of six years in the U.S. in H-1B Status.

After six years in H-1B status, the foreign worker has the following options:

  1. He or she may extend H-1B Status in one year increments, if a labor certification or green card application has been pending at least one year.
  2. He or she may extend H-1B Status beyond six years, if foreign worker has an approved green card, but is not yet eligible to receive it due to per-country limitations (applies to citizens of India, Mexico, and the Philippines).
  3. He or she may leave the U.S. for at least one year.  After a year, the foreign worker would be eligible for six more years in H-1B Status.
  4. He or she could possibly switch to another temporary visa category.

Application Procedures: There are three steps involved in obtaining an H-1B Visa:

Step 1- Prevailing Wage: The employer must determine the “prevailing wage” for the position it is offering the foreign worker. 

Step 2- Labor Condition Attestation: The employer must file a Labor Condition Attestation (LCA) with the Department of Labor.  The LCA is a form on which the employer promises to pay the employee 100% of the “prevailing wage” for the position. 

As part of the LCA process, the employer also must also promise that it will comply with a number of regulations related to working conditions, record-keeping, and provision of notice to other employees of available job opportunities.   We can provide more information about these special rules and obligations.  We normally submit the LCA form via the internet.  It takes 7 days to complete the LCA certification process.

Step 3- USCIS Petition for H-1B Visa: The employer must sign and submit a petition for an H-1B Visa to the U.S. Citizenship and Immigration Services (USCIS) on behalf of the foreign worker. 

In the H-1B petition, the employer must prove all of the requirements listed above.  This includes evidence that the worker has a university degree or the equivalent and evidence that the position offered qualifies as a “specialty occupation.” 

We prepare all the forms for the H-1B petition and assist with the preparation of a “letter of explanation” from the employer.  We also oversee processing of the petition; ensuring that all necessary documents are enclosed, all regulations are complied with, and all fees are paid.  Once the petition is approved, we assist the foreign worker with visa issuance at the consulate abroad.

The USCIS usually requires 3 to 4 months to approve an H-1B petition.  But, processing can be longer depending on how many cases the USCIS has in its system and the difficulty of the case.  For faster processing, applicants can pay the government an extra fee.  For this service, called “Premium Processing, ” the USCIS promises to review the H-1B petition within 15 days.

Government Fees and Other Costs: In addition to our legal fee, the foreign worker and/or the employer will have to pay a number of government fees and other costs.  These include the following:

  • The employer is required to pay a government fee of $750 if it has fewer than 26 employees or $1,500 if has more than 26 full-time employees.  This fee goes to a fund to retrain U.S. workers.  The employer is forbidden from passing this fee on to the worker. 
  • The employer is required to pay a government fee of $500.  This fee goes to a fraud prevention and detection program.  The employer is forbidden from passing this fee on to the worker.
  • The employer must pay the regular government application fee 
  • The employer or the employee may pay an optional USCIS Premium Processing fee 
  • The employer is required to pay attorney fees associated with the preparation and filing of the H-1B petition
  • The employer or the foreign worker may have to pay for an evaluation of the foreign worker’s foreign education or work experience.  The evaluation must conclude that the worker’s education and/or work experience is equivalent to a U.S. university degree.  The cost of the evaluation varies in each case, but is usually between $100 and $600.

After the H-1B Petition is Approved: 

Change of Status: If the worker is in the U.S. when the H-1B petition is filed, we will usually request a change of nonimmigrant status to H-1B.  The worker will receive an approval notice, which contains a new I-94 entry document.  The new I-94 card replaces the entry document originally received by the worker upon admission into the U.S.

An approval notice with a replacement I-94 card will be valid for period of time that we requested in the H-1B petition (usually 3 years).  The worker is immediately authorized to begin employment and can continue to live and work in the U.S. until the expiration date. 

A worker who changes his or her nonimmigrant status in the U.S. must plan international travel very carefully.  The worker will not be allowed to re-enter the U.S. until he or she uses the approval notice to obtain an H-1B Visa at the U.S. consulate in the worker’s home country.  We provide the worker with guidance and instructions for visa issuance.  We recommend that the worker contact us at least 30 days before leaving the U.S.

Consular Issuance of Visa: If the worker is not in the U.S. when the H-1B petition is filed, then we must request issuance of the H-1B visa at the U.S. consulate in the worker’s home country.  We will provide the worker with guidance and instructions for visa issuance.  The worker will have to make an appointment for a visa interview at the consulate.  Appointments for visa issuance usually are scheduled within two to four weeks.

Social Security Number: After a change of nonimmigrant status to H-1B, or admission to the U.S. on an H-1B Visa, the worker can use his or her approval notice and/or H-1B Visa to obtain a social security number.  Often the employer will not permit the worker to begin until the after he or she receives the social security number.  This is not necessary, but is common with many employers.  It may take two to four weeks to get the social security number.

Changes in Employer or Job Duties: If the foreign worker wants to change jobs to a new employer, the new employer must file a petition to amend the worker’s H-1B Status. The foreign worker may start working for the new employer immediately upon filing an H-1B Amendment petition.  He or she does not have to wait for the amendment petition to be approved.

If the foreign worker wants to change jobs with the same employer (for example, if he or she receives a promotion), then a petition to amend the worker’s H-1B status is usually not required.  It would only be required if the position and/or the duties were significantly different from the position approved by the government in the initial H-1B petition.

If the employer merges or is acquired by another company, we should be contacted immediately.  An H-1B Amendment petition may be required.  If the employer goes out of business or terminates the worker, we should also be contacted as immediately.  The worker begins to violate his or her H-1B status as soon as he or she stops working for the employer (unless the worker has requested a leave of absence for medical or other reasons).

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