H-1B visa is a nonimmigrant visa that is designated to allow U.S. employer to recruit and employ foreign professional in specialty occupations within the U.S. for a specified period of time. The H-1B program provides the opportunity for foreign workers in specialty occupations to legally live and work in the U.S. and allow their spouse and children (under the age of 21) to accompany them and legally live in the U.S. on an H-4 visa. H-1B nonimmigrant worker may initially be admitted for a period of up to 3 years and extendable to a maximum of 6 years. Typical H-1B occupations include architects, engineers, computer programmers, accountants, doctors and college professors.
H-1B visa is subject to the H-1B “Cap” which refers to the annual numerical limitation set by Congress on the number of workers authorized to be admitted on an H-1B visa or authorized to change status to H-1B visa if already in the U.S. The current annual cap on the H-1B category is 65,000 (“Regular Cap”). An advanced degree exemption is provided for the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master’s degree or higher. (“Master Cap”).
The U.S. employer must demonstrate that the employment is offered in a specialty occupation, either on a full or part-time basis, located within the U.S. and that the prospective employee has met the required qualifications.
H-1B Specialty Occupation Requirement
The H-1B job must meet one of the following criteria to qualify as a specialty occupation:
- Bachelor’s or higher degree or its equivalent is normally 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.
H-1B Employee’s Educational Requirement
The H-B employer must show that the alien worker meets the specific educational requirements to be engaged in the specialty occupation as follows:
- 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;
- Hold an unrestricted state license, registration, or certification which authorizes you 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.
DOL and USCIS Requirements
In addition to the above requirements, the H-1B employer must also abide by Department of Labor (DOL) regulations by submitting a Labor Condition Application (LCA) to ensure (1) that the alien worker’s proffered wage is equal to or exceeds the “prevailing wage” in the geographic area of employment and (2) that the employer will provide working conditions that will not adversely affect other similarly employed workers.
- Step 1: Employer Submits LCA to DOL for certification.
The employer must apply for and receive DOL certification of an LCA. This form binds the employer to pay the prevailing wage determined by COL and offer the H-1B visa holder the same benefits as other employees.
- Step 2: Employer Submits Completed Form I-129 to USCIS.
The employer should file Form I-129, Petition for a Nonimmigrant Worker, with the correct USCIS Service Center.
- Step 3: Prospective Workers Outside the United States Apply for Visa and/or Admission. Once the Form I-129 petition has been approved, the prospective H-1B worker who is outside the United States 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.
*USCIS will need approximately 3-4 months to adjudicate the H-1B petition and issue an H-1B approval. Premium Processing ($1,225 fee) is an option that will ensure that USCIS responds with an initial decision on the H-1B petition within 15 calendar days.