General

The H-1B visa permits non-U.S. citizens to enter the United States and work within what is referred to as a “specialty occupation.”  To obtain H-1B status, a U.S. employer must submit a petition on your behalf.  This article provides an overview of the basic requirements, rules, and procedures pertaining to the H-1B application process.

Requirements

Speciality Occupation: Four-Year Bachelor’s Degree or its Equivalent

To be eligible for an H-1B visa, you must have been offered a position with a U.S. employer to work within a speciality occupation.  A job may qualify as specialty occupation if it requires at least a four-year bachelor’s degree or its equivalent in work and/or educational experience.  Professions that will most certainly fall within the definition of a speciality occupation include, but are not limited to, lawyers, accountants, physicians, architects, social workers, professors, artists, pharmacists, chiropractors, librarians, computer system analysts, chemists, and engineers.

If it is unclear as to whether or not your field of work will be considered a speciality occupation, you must assess the requirements of the offered position.  If the position you have been offered requires at least a four-year bachelor’s degree, there is a good chance it will qualify as a speciality occupation.  If the job you have been offered not require at least a four-year bachelor’s degree, then the position must require the equivalent of a four-year bachelors’ degree in work and/or educational experience.  The USCIS usually wants to see three years of specialized training and/or work experience for every year of university that you would have attended.  Therefore, if you have not attended any university, you must have at 12 years of professional experience.

Four-Year Bachelor’s Degree and/or Equivalent Experience Must be Necessary for the Performance of the Job

It is very important to note that the offered position must require a professional with at least a four-year bachelor’s degree or its equivalent.  Thus, if someone with less experience would be qualified for the offered job, the position is not a speciality occupation.  For example, an employer may seek to hire a bookkeeper with at least a four-year bachelor’s degree or 12 years of experience in the industry.  However, the offered position would not be considered a speciality occupation because, even though the employer prefers to hire someone with extensive experience, such credentials are not necessary for the performance of the offered job.  

H-1B Cap

Numerical Limit

Under federal regulations, the number of workers who can be issued an H-1B visa in a given fiscal year is capped at 65,000.  Of the 65,000 H-1Bs issued each fiscal year, 20,000 are reserved for people with a minimum Master’s level degree from a U.S, academic institution.  Also, 1,400 H-1Bs are reserved for Chilean nationals and 5,400 for Singapore nationals.   

Those Exempt from the Cap

You are not subject to the numerical limits if you will be working for an institution of higher education (or a non-profit affiliated with one), a non-profit research organization, or a government research organization (“cap-exempt institutions”).  Also, individuals who obtained an H-1B from a non cap-exempt institution are not subject to the cap when seeking to renew their status or change employers.

Filing and Attorney Fees

Federal regulations mandate that your employer pay all of the filing fees for the processing of your H-1B petition and a portion of the attorney fees. 

When to Apply

The earliest date that U.S. employers may petition for an H-1B visa is 6 months before the prospective employees actual start date.  Therefore, since the beginning of each fiscal year is October 1^st, the earliest date an employer can apply for an H-1Bs is April 1^st.

Duration

Your H-1B status will expire after three years.  Prior to its expiration, you may extend your H-1B for an additional three years, which means you may stay in the U.S. for a total of 6 years as an H-1B non-immigrant.  However, under certain circumstances, you can extend your stay in the U.S. beyond six years as an H-1B visa-holder.

Dual Intent

H-1B status is a dual intent category, which means, unlike with most other non-immigrant visas, you may apply for a Green Card while in the U.S. as an H-1B visa-holder without relinquishing your non-immigrant status.  See the General Information Pertaining to Non-Immigrant Status article for a better understanding of how dual intent categories work.

Spouses and Children

Your spouse and unmarried children under age 21 can enter and reside in the U.S. with you by applying for an H-4 visa.  To be eligible for an H-4 visa, your spouse and/or children will need to provide bona fide proof of their familial relationship to you.  H-4 visas authorize qualified family members to reside in the U.S. with you, and to study in the U.S. as well, but not work.

Basic Overview of Application Procedure

Step 1: File Labor Condition Application

Overview of Labor Condition Application

To sponsor you for an H-1B, your prospective employer must first complete and file a Labor Condition Application with the U.S. Department of Labor (the “DOL”).  In the Labor Condition Application, your prospective U.S. employer will promise that you, the foreigner worker, and U.S. workers alike, will be treated fairly and the conditions and terms of your employment will not violate federal law.

The importance of completing the Labor Condition Application honestly and correctly cannot be stressed enough.  Possible penalties for erroneous or misleading disclosures in the application include fines, payment of back wages, debarment of the employer from hiring foreign workers and even criminal penalties.

Labor Condition Attestations and Requirements

On the Labor Condition Application form, your employer must make four important statements regarding the terms of your employment and U.S. work conditions.  Your employer is required to maintain records as evidence in support of each statement and must also follow various other requirements pertaining to the application. The following statements and information must be included in the Labor Condition Application, and your employer must keep supporting documentation for each:

• The number of foreign workers that will be hired
• A statement of the wages the foreign workers will be paid
• The prevailing wage for the offered job within the employer’s locale
• Where the employer obtained the prevailing wage information
• A promise that the foreign worker will be paid no less than the prevailing wage, or the employer’s actual wage, whichever is higher
• A promise that the foreign worker will receive the same benefits as U.S. co-workers in similar positions with the company
•  A statement that there are no strikes, lockouts, or work stoppages within the company
• A statement that the employer has given notice of the filing of the H-1B attestations to either the labor union representative for the employees at the company, or, if no union exists, that the employer has posted a notice of the filing in at least two conspicuous locations at the foreign workers place of employment for a period of at least ten days

Determining and Reporting the Prevailing Wage

Your employer can show the prevailing wage for the offered position by using one of the following five methods:

• Wage determination published under requirements of the Davis-Bacon Act: These are available in public libraries or through the State Employment Security Agency (SESA). 
• A customized State Employment Security Agency Salary Survey: To obtain this report your employer and/or attorney will need to request it from the State Employment Security Agency.  
• An arm’s-length union contract: Your employer will only be able to obtain such a contract if the employees are unionized. 
• A survey conducted by an independent authoritative source: The survey must be published by a known and reputable organization within the 24-month period preceding the filing of the Labor Condition Application.  The procedure responsible for the results of the survey must be reliable. 
• Any other reliable source of information: Your employer may use any other legitimate source to determine the prevailing wage for the offered position other than the four methods listed above.  However, unlike the other methods listed, if your employer is ever audited it will have to proof that the prevailing wage information is in fact accurate.   

Step 2: File the Petition

Once your Labor Condition Application is approved, your employer will receive an endorsed copy of the attestation from the U.S. Department of Labor.  Your employer will then need to file the endorsed attestation, along with various USCIS documents and supporting documentation, with the appropriate USCIS Service Center.  The exact documentation to be included in your petition may differ from case to case and can often be quite extensive.  Furthermore, if you are applying for an H-1B from outside of the U.S., when submitting the application your employer must include a second copy of the application materials and supporting documentation along with the originals. 

Step 3: Apply for Your Visa at a Consulate 

If you are currently residing outside of the U.S. while applying for an H-1B, you will need to obtain a visa.  After the petition filed by your employer has been approved, you will be issued a Form I-797B, with which you can apply for a visa at a U.S. consulate.  

Step 4: Enter the United States 

You have until the expiration date on your H-1B visa to enter the U.S.  When you arrive at the U.S. port of entry, an immigration officer will examine your paperwork and ask you some questions.  If all is in order, the officer will stamp your passport and give you an I-94 card.   It will be stamped with a date indicating how long you may stay in the U.S. 

Expedited Removal 

A U.S. immigration officer may prohibit you from entering the U.S. if he or she suspects that you are lying about any facts pertaining to your status or if you do not have proper documentation.  If the immigration officer excludes you pursuant to an expedited removal, you may not be excluded from the U.S. for up to five years, unless USCIS grants you a waiver.

Ife Ashabo

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