H-1B Nonimmigrant Visa Category
By Jennifer Behm, United States Immigration Lawyer
The H-1B category is available to individuals who work in specialty occupations whose services are sought by U.S employers for positions requiring such skills.
A specialty occupation requires highly specialized knowledge in a particular field, usually demonstrated by attainment of at least a Bachelor’s degree or its equivalent in a specific field.
The following classes of foreign nationals may also qualify to perform a specialty occupation:
- Persons with equivalent foreign degrees;
- Persons fully licensed to practice their profession;
- Persons with a combination of education, specialized training and experience. For each year of university that a foreign national lacks, he/she must demonstrate at least three years of experience in the specialty.
The H-1B Process
Prior to filing an H-1B petition, there are a number of requirements an employer must fulfill. Specifically, a Prevailing Wage Determination must be made in accordance with U.S. Department of Labor regulations and Labor Certification Application must then be filed.
The Prevailing Wage, for H-1B purposes, is the rate being paid in similar positions in a particular metropolitan statistical area for the same occupation. The foreign worker cannot be paid less than the prevailing wage as determined by the Department of Labor.
The requirement of filing a certified Labor Condition Application (“LCA”) with all H-1B petitions was imposed by the 1990 Immigration Act. It serves two related purposes: 1) ensuring that U.S. wages are not depressed by the hiring of foreign labor; and 2) that foreign workers are not exploited. The employer makes specific representations regarding the conditions under which the foreign worker was hired and will be employed. These attestations are as follows:
- The employer will pay the required wage, which is the greater of the prevailing wage or the actual wage paid to other employees in the same position;
- The employment of H-1B workers will not adversely affect the working conditions of US workers;
- When the LCA was filed, there was no strike, lockout or other work stoppage because of a labor dispute; and
- The H-1B worker will be given a copy of the LCA and the employer has notified the bargaining representative if the job is unionized, or if not, has posted a notice in a conspicuous place that an LCA was filed.
Anticipated processing time to obtain LCA certification is approximately five (5) to ten (10) working days (not counting weekends or government holidays).
Historical Boston Street — Boston is one of the top three states recruiting H-1B holders
Numerical Limitations on H-1B Issuance
The H-1B category includes a general cap of 65,000 new positions each fiscal year. An additional 20,000 H-1B positions are allocated for foreign workers possessing a Master’s degree or higher from an accredited U.S. institution.
Certain H-1B employers, including educational institutions and non-profit research organizations, may be exempt from the cap. H-1B renewals or change of employer petitions are not subject to the cap.
H-1B petitions may be approved for an initial period of three (3) years, with an extension permitted for an additional three (3) years. The total period of stay may reach six (6) years. Since the fiscal year for the U.S. government begins on October 1, workers approved for cap-subject H-1B visas filed in April will not be able to begin work until October 1.
H-1B petitions must be filed at a CIS Service Center and can take three to four months for regular processing. CIS offers a Premium Processing service for an additional fee and guarantees that action is taken on the case within 15 calendar days from receipt (action meaning an approval, request for evidence, notice of intent to deny or denial). Once the case is approved at a Service Center, the individual can then apply for a visa at a Consulate abroad, if required. Canadian citizens do not require a visa and, therefore, may show their approval notice at a port-of-entry and will be issued an I-94 card entry document.
The CIS charges $460 (USD) to process Form I-129. In addition, there is a one-time payable Anti-Fraud fee of $500 for initial H-1B applicants or for change of employer petitions. Further, if the sponsoring company employs more than 25 full-time workers, there is an additional fee of $1,500. If there are less than 25 full-time workers, the fee is $750. For those cases filed under Premium Processing, there is a separate fee of $2,500. Additional fees may apply to companies who employ more than 50 workers in their U.S. operations, with more than 50% of those workers holding certain H or L visa status. Please note that government fees are subject to change at any time.
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