H-1B Visa - Immigration Attorney
H1B Visa Description
Employers in the United States that wish to employ foreigners in professional positions for “specialty occupations” may file petitions with the USCIS requesting H1B visa status for foreign national workers.
The temporary professional visa (H-1B) allows professionals to enter the United States and accept temporary employment within their profession.
This visa is often utilized by engineers, teachers, professors, designers, researchers, computer scientists and other professionals as a means to gain valuable work experience in the United States while receiving a professional income.
The visa is subject to annual quota restrictions and is often sought by foreign nationals who have completed their professional training either in the United States or abroad.
Permission to Work
Allows professionals to enter the United States and accept employment in a professional capacity for a temporary period.
The professional is allowed to receive a salaried income from the employer.
The H-1B visa is granted in increments not to exceed a total stay of six years.
Spouses & Children
Spouses and children under twenty-one years of age may be entitled to remain in the United States for the duration of the H1B visa holder’s authorized stay.
They are issued H-4 visas and are not permitted to work as H-4 visa holders.
Dependents Permitted To Attend School or College.
The spouse and children under twenty-one years of age are permitted to attend school on their H-4 visa status.
More than one H1B visa petition may be in effect simultaneously, allowing the H1B temporary professional to work for two employers during the same time period.
H1B Visa Requirements
The beneficiary worker must possess at least a U.S. Bachelor Degree or the foreign equivalent of a U.S. Bachelor Degree, in a field related to the occupation.
The equivalent to a U.S. Bachelor Degree in a specific Field may also be gained by experience through progressively responsible positions. The formula is 3 years of professional work experience = 1 year of University.
If the applicant possesses a foreign degree, the Immigration Service may require a credential evaluation.
There must be an employer in the United States offering the professional employment.
The offer of employment must be to perform services within a “specialty occupation” which requires theoretical and practical application of a body of highly specialized knowledge and a bachelor’s or higher degree in the specific specialty as a minimum for entry into the occupation.
The offer of employment may be for full or part time employment.
Where licensure is required to practice a profession, the applicant must hold appropriate licensure under state law.
The employer must complete the Labor Condition Application procedure with the United States Department of Labor.
The Department of Labor must approve the employers Labor Condition Application.
The employer must agree to pay transportation cost if the employer terminates employment prior to the end of the authorized employment.
No Work Prior to Approval
Employment may not begin until the Immigration & Naturalization Service has issued its approval and the appropriate visa issued.
Employers may be changed during the six year H-1B visa duration, but only after approval of the new employer and by the Immigration & Naturalization Service.
H1B Visa Quota
The H1B visa (specialty occupation) is subject to an annual numerical quota.
Spouse & Children Not Allowed to Work
The spouse and children of the H1B visa holder are not permitted to work.
H1B Visa Procedure
Step 1: Prevailing Wage
Click here to obtain the prevailing wage from the Foreign Labor Certification Data Center.
Step 2: LCA . Form ETA 9035
The employer petitioning for H-1B status must file a labor condition application ‘LCA’ with the U.S. Dept of Labor.
The LCA (form ETA 9035) must be certified by the DOL before the H-1B petition is filed with the Dept. of Labor.
Step 3: Form I-129
The employer files with form I-129 with the USCIS. A decision is usually issued in 2 to 5 months. (15 Days is premium processing is used).
An H-1B is an alien coming temporarily to perform services in a specialty occupation.
A specialty occupation is one which requires the theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation and requires completion of a specific course of education culminating in a baccalaureate degree in a specific occupational specialty.
The petition must be filed by the U.S. employer, and must be filed with:
An approved labor condition application from the Department of Labor;
Evidence the proposed employment qualifies as within a specialty occupation;
Evidence the alien has the required degree by submitting either:
- A copy of the person’s U.S. baccalaureate or higher degree which is required by the specialty occupation.
- A copy of a foreign degree and evidence it is equivalent to the U.S. degree, or
- Evidence of education and experience which is equivalent to the required U.S. degree;
- A copy of any required license or other official permission to practice the occupation in the state of intended employment; and
- A copy of any written contract between you and the alien or a summary of the terms of the oral agreement under which the alien will be employed.
LCA: 7 Days
USCIS – New Petition: 2-5 Months
USCIS – Transfer or Renewal/Extension: 2-5 Months
USCIS – Premium Processing Service: 15 Days