One of the most sought after ways for U.S. companies to employ foreign nationals in the U.S. is obtaining an H-1B visa for the prospective foreign national employee. This article provides a brief overview of the requirements, the process, and the benefits of the H-1B visa.
The H-1B visa is available to foreign nationals who perform services in a “specialty occupation.” A “specialty occupation” is defined by statute as an occupation that requires the “theoretical and practical application of a body of highly specialized knowledge, and the attainment of bachelor’s or higher degree in the specific specialty (or its equivalent).”
To qualify as a “specialty occupation” the job being offered by the U.S. company must meet one of the following criteria:
- The job must require a bachelor’s or higher degree or its equivalent as the minimum entry requirement for the position;
- The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree;
- The employer normally requires a 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.
Some examples of specialty occupations include accountants, computer professionals, physicians, market research analysts, financial analysts, teachers, and architects.
To qualify for the position, the prospective foreign national employee must meet one of the following criteria:
- have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university;
- hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation; or
- hold an unrestricted state license, registration, or certification which authorizes the prospective employee to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment; or
- have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
The first step in the process is for the employer to submit a Labor Condition Application (“LCA”) to the U.S. Department of Labor (“DOL”). The LCA requests information regarding the employer, the job title and job duties, and the wages the employer intends to pay the prospective employee. The employer must attest that the employer will pay the prospective employee a wage which is no less than the actual wage paid to similarly qualified workers or the prevailing wage for the position in the geographic area in which the prospective employee will be working. The employer must also attest that the employer will offer the prospective employee benefits such as health, life, disability and other insurance plans on the same basis and under the same criteria for eligibility as those offered to U.S. workers. The employer must provide notice to its other employees of the filing of the LCA. The employer must also maintain a Public Access File containing certain documentation and keep certain additional documentation readily available should the DOL initiate an inspection. These requirements are intended to discourage U.S. employers from underpaying foreign nationals and hiring foreign nationals when there are qualified U.S. employees available to perform the work. There is currently no filing fee for the LCA.
Once the LCA is certified by the DOL, the employer must complete an I-129 Petition for a Nonimmigrant Worker form. The I-129 form requests detailed information about the employer, the job title and job duties, and the prospective employee. In addition to completing the I-129 Form, the employer must submit several supporting documents, including, but not limited to:
- a certified copy of the LCA.
- a company letter of support detailing the employer, the prospective employee’s qualifications, the job title and job duties, and the nature of the employment relationship.
- the prospective employee’s I-94 Arrival and Departure record.
- the prospective employee’s passport.
- evidence that the occupation is a specialty occupation.
- evidence that the prospective employee has the necessary credentials to fill the specialty occupation such as degrees, transcripts, and work experience information.
- evidence demonstrating the nature of the employer-employee relationship between the employer and the prospective employee such as a written contract or summary of the terms of employment.
- an itinerary if the prospective employee will be working at multiple locations.
The prospective employee’s spouse and unmarried children under 21 years of age may also seek admission in the H-4 nonimmigrant classification, but additional forms and supporting documentation must be submitted and approved.
The I-129 Form is submitted to USCIS along with the required filing fees paid by the employer. The current base filing fee for the I-129 form is $460.00. There are also additional filing fees that are applicable in most cases such as the $750 or $1,500 ACWIA – H-1B Education and Training Fee and $500 Fraud Prevention and Detection Fee. Processing times of petitions vary by USCIS field office, but usually take a minimum of three (3) to four (4) months.
Once the Form I-129 petition has been approved by USCIS, the prospective employee who is outside the U.S. may apply with the U.S. Department of State (DOS) at a U.S. embassy or consulate abroad for an H-1B visa (if a visa is required). Regardless of whether a visa is required, the prospective H-1B worker must then apply to U.S. Customs and Border Protection (CBP) for admission to the United States in H-1B classification.
Once the H-1B visa holder is admitted to the U.S., the employee can remain in the U.S. for a period of three (3) years with an option to renew the H-1B visa for an additional three (3) year period. In addition, the H-1B visa is one of the few non-immigrant visas with a “dual intent” aspect which allows the H-1B visa holder to apply for permanent residency while remaining in the U.S.
The Limited Number of H-1B Visas Available
The fiscal year for H-1B visas usually starts on April 1st each year. There are only 65,000 regular H-1B visas available each year. There are an additional 20,000 H-1B visas available for petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher.
In recent years, the process for obtaining H-1B visas has been very competitive. For example, on April 7, 2017 (i.e., just a few days after the start of the 2018 fiscal year for H-1B visas), USCIS announced that it had already received 199,000 H-1B petitions which was a sufficient number of petitions to fill both the regular and master’s caps. USCIS then used a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. USCIS rejected and returned all unselected petitions with their filing fees.
© Riley Bennett Egloff LLP
Disclaimer: Article is made available for educational purposes only and is not intended as legal advice. If you have questions about any matters in this article, please contact the author directly.
Permissions: You are permitted to reproduce this material in any format, provided that you do not alter the content in any way and do not charge a fee beyond the cost of reproduction. Please include the following statement on any distributed copy: “By Stephanie S. Chaudhary © Riley Bennett Egloff LLP - Indianapolis, Indiana. www.rbelaw.com”