H-1B Temporary Worker
The H-1B visa is intended for nonimmigrants with the requisite qualifications who seek to perform services in a specialty occupation in the United States.
- A “specialty occupation” is one that requires:
- Theoretical and practical application of a body of highly specialized knowledge, and
- Attainment of a bachelor’s or higher degree in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.
- There are 65,000 H-1B visas available every fiscal year, starting on October 1. An additional 20,000 H-1B visas exist for nonimmigrants with graduate (master’s or higher) degrees from a U.S. institution of higher education. H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities or a nonprofit research organization, or a government research organization are not subject to this numerical cap.
- The nonimmigrant must hold a U.S. baccalaureate or higher degree required by the specialty occupation from an accredited college or university; hold a foreign degree determined to be equivalent U.S. baccalaureate or higher degree; hold a license or certification which authorizes practice of and engagement in that specialty in the state of intended employment; or have education, training, and/or experience equivalent to completion of a U.S. baccalaureate or higher degree in the specialty occupation, and recognition of expertise in the specialty through progressively responsible positions.
- For purposes of determining equivalency to a baccalaureate degree in the specialty, three years of specialized training and/or work experience must be demonstrated for each year of college-level training the nonimmigrant lacks. For equivalence to an advanced (or master’s) degree, the nonimmigrant must have a baccalaureate degree followed by at least five (5) years of experience in the specialty.
- An employer must complete and file a Labor Condition Application (“LCA”) with the U.S. Department of Labor (“DOL”) prior to the filing of the H-1B petition. The employer attests on the LCA that it will pay the alien a wage equal to the higher of either
- (i) the “prevailing” wage for the specialty occupation in the local labor market or
- (ii) the “actual” wage paid by the employer to other workers with similar responsibilities and qualifications in the occupation. (The employer must retain documentation supporting determination of both the prevailing wage and the actual wage.)
- The employer also attests that the H-1B worker’s employment will not adversely affect the working conditions of U.S. workers similarly employed, that there is no strike, lockout or other work stoppage in the occupation in which the H-1B worker will be employed and that notice of the filing of the application has been provided to the company’s employees and the foreign national.
- Additional requirements relating to recruitment and displacement of U.S. workers are required from employers whose workforce is composed of a significant percentage of foreign nationals (“dependent employers”). The DOL may investigate to determine whether all LCA requirements have been met and penalties for a willful failure to comply can be severe.
Period of Stay:
- Initial period of stay can be up to three (3) years; maximum period of stay is typically six (6) years for H-1Bs, with a few exceptions.
Dependent Family Members:
- Dependents including legal spouses and children under 21 years of age are eligible for H-4 status. Certain H-4 spouses are permitted work authorization.
- Requires submission and approval of the LCA by the Department of Labor followed by an H-1B Visa Petition with supporting evidence to U.S. Citizenship & Immigration Services (USCIS). Following approval, the employee must apply for and obtain an H-1B visa at a U.S. consulate abroad before being admitted to the U.S.
- Canadian citizens are considered visa-exempt and may be admitted with an H-1B approval notice and valid passport.
- USCIS processing times are subject to change but average six (6) months unless premium processing service is used, in which case USCIS will review the petition within 15 calendar days.
- Visa appointment availability is subject to change but appointments are generally available within 1-2 weeks, with visas being issued within 7-10 days following, assuming no government administrative processing delays.
Maintaining H-1B Visa Status:
- The visa is employer-specific, meaning that an employee cannot change employers without government authorization.
- The visa is job- and location-specific, meaning that an employee cannot change positions or locations without government authorization if a material change in job duties or worksite will occur.