The H-1B visa category is available to foreign individuals who work in “specialty occupations.” A “specialty occupation” is defined as an occupation that requires at least a Bachelor’s degree in the field of intended employment or its equivalent (this requirement can typically be met by possessing a 3-year degree and 3 years of relevant post-graduate experience). However, if the professional seeking an H-1B visa has a Bachelor’s degree, but the employment position sought does not require at least a Bachelor’s degree to perform the duties, the occupation will not qualify for purposes of allowing an individual to obtain an H-1B visa. When petitioning for an H-1B visa, the company, organization, or the employer is the petitioner, and has to file the H-1B petition on behalf of the foreign individual it hopes to employ; while the foreign worker is the beneficiary. Individuals cannot apply for an H-1B visa to allow themselves to work in the U.S., as it is not permitted to “self-petition” for this type of visa category.
H-1B petitions may be approved to allow an individual admission into the U.S. for a maximum period of 6 years. An initial petition may be approved to allow admission up to 3 years, not to exceed the period of validity for the corresponding Labor Condition Application (LCA). Employers wishing to sponsor H-1B workers must agree to the terms of the LCA and maintain documentation supporting the attestations that: 1) the H-1B beneficiary will be paid at least the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question OR the prevailing wage, whichever is higher; 2) employing the H-1B foreign individual will not adversely affect the working conditions of U.S. workers similarly employed in the area of intended employment; 3) on the date the LCA is signed, there is not a strike or lockout in the course of a labor dispute at the place of employment; 4) a copy of the LCA has been provided to each H-1B worker included in the application; 5) when the application was signed, notice of the application filing was be either provided to the bargaining representative (if there is one) or that this notice will be posted for 10 consecutive days in 2 conspicuous locations where the H-1B workers will be employed; and 6) the petitioning employer will pay reasonable costs for the return trip to the foreign individual’s country of origin if his/her employment is terminated before the end of his stated term of employment.
Due to the time-intensive filing process and necessary fees involved in the H-1B filing process, it is good practice to request the maximum 3 year admission period when submitting an initial H-1B visa application. The total number of H-1B visas that may be issued each year is limited to an annual cap (known as the “H-1B cap”), which is determined by the U.S. Congress.
Aside from the requirement that the position fall be a specialty occupation, the petitioning employer must first file an LCA, with the Department of Labor (DOL). When filing an LCA, the petitioning employer must attest that the H-1B visa holder will be paid the “prevailing wage” for the work being performed, and that employment of the H-1B applicant worker will not adversely affect the working conditions of similarly employed U.S. workers who are qualified for the job sought.
A valid H-1B visa entitles the principle’s spouse and minor children to accompany him/her and legally live in the U.S. by obtaining an H-4 visa. However, the spouse and children H-4 visa holders have to obtain their own work visa, predicated on an independent basis, in order to lawfully work in the U.S.
One of the advantages of the H-1B visa, as opposed to many other nonimmigrant visas, is that the H-1B visa allows for “dual intent.” What this means is that while holding a valid the H1B visa, the individual employee can also apply for a Green Card to become a lawful permanent resident. The H-1B visa will not be denied or invalidated simply because the H-1B visa holder no longer exhibits an unequivocal intent to return to his/her country of origin, as is the case with many other nonimmigrant visas. The petitioning employer may sponsor a foreign employee in H-1B status to apply for lawful permanent resident status.
H-1B visas also allow for “visa portability,” which means that if an individual is in legal H-1B visa status for one employer he/she may accept new employment upon the filing of a new petition by another prospective employer. This is only allowed if: 1) the individual was lawfully admitted to the U.S.; 2) the new petition is “nonfrivolous” in nature (must have some basis in law and fact); 3) the new petition was filed before the expiration date of the period of stay authorized by the U.S. government (the new petition may be filed when a person’s I-94 is still valid, even if that I-94 will expire when the petition is still pending); and 4) before being lawfully admitted to the U.S., the H-1B visa holder was not employed without authorization before filing such a petition.