The H-1B employment visa allows foreign nationals to enter the United States to be employed by an American company. In many cases, individuals with the equivalent of a U.S. Bachelor’s degree and who work in a position which commonly requires at least a Bachelor’s degree may use this category of visa.
Some common industries for individuals receiving H-1B visas include information technology, engineering, medicine, mathematics, academia, accounting, architecture, law, and science-related fields. Fashion models “of distinguished merit and ability” may also qualify without meeting the educational requirement.
Moro Legal, LLC, assists both individuals and employers in the H-1B visa application process. Schedule an attorney consultation today to begin your journey, or contact our firm for further information.
What is the process to apply for an H-1B visa?
A U.S. employer will request a visa on behalf of the foreign national that the business wants to employ.
The employer must file a Labor Condition Application (LCA) with the U.S. Department of Labor affirming that the company will pay the prospective employee an average wage paid to U.S. workers in a similar position, and that the prospective employee will receive benefits and work in conditions similar to other employees of the business.
The employer must also attest in the LCA that the prospective employee’s working conditions will not adversely affect similarly employed U.S. workers, that there is no strike or lockout at the employer’s place of business, and that notice of filing of the LCA has been given to a union representative or has been posted at the company’s place of business.
After filing the LCA, the Department of Labor will evaluate and either approve or reject the application. This process may normally take one to two weeks, but can be longer. Reasons for any rejection will be provided. Once the LCA is approved, the employer must file the H-1B petition with U.S. Citizenship and Immigration Services to request the H-1B visa for the prospective employee. Certain categories of workers and businesses are subject to numerical limits called H-1B caps, which can vary depending on whether the worker has an advanced/graduate degree or hails from certain countries.
For those affected by H-1B caps, it is important to be strategic about timing the employment start date with the beginning of the U.S. federal government fiscal year on October 1, and the submission of the worker’s petition as close as possible to April 1, when USCIS begins accepting them for the following fiscal year. Workers and employers subject to caps will want to submit LCAs to the Department of Labor early enough for approval for the H-1B petition to be submitted in a timely manner.
The U.S. employer may also be required to show that there are no qualified U.S. workers for the position and that the company has made attempts to find U.S. workers, if the company employs many H-1B visa holders.
The H-1B visa is valid for a maximum of three years. An H-1B visa holder may remain in that status for up to six years. The H-1B employee can only work for the business that is listed on his or her immigration form. However, a visa holder’s H-1B status has “portability” in that the visa holder may file a new H-1B application for another employer to switch jobs and keep their status, subject to certain conditions. An extension past the six-year limit is sometimes allowed if the H-1B holder is seeking permanent residence through Labor Certification or if the employer has filed an Immigrant Petition for the H-1B employee.
The spouse and the unmarried children (under age 21) of an H-1B applicant may also apply for admission to the U.S. through an H-4 visa to accompany the employee. In some circumstances, the H-4 dependent spouse may also be eligible to receive work authorization in the U.S.
The content of this website is for general informational purposes only and is not a replacement for legal advice. Immigration law is a complex area of law that is constantly changing and this website cannot cover every facet of the law. Every case is different, and all individuals and businesses should consult with an immigration lawyer prior to filing any petition or application.