The H-1B program allows employers to temporarily employ foreign workers in the United States in specialty occupations or as fashion models of distinguished merit and ability. A specialty occupation requires the theoretical and practical application of a body of specialized knowledge and a bachelor's degree or the equivalent in the specific specialty (e.g., sciences, medicine, health care, education, biotechnology, business specialties, etc.).
At Trow & Rahal, we offer complete accessibility, unmatched experience, and high ethical standards to our clients seeking assistance with obtaining H1-B status for their employees. We work with companies actively recruiting new employees in F-2 status, who currently hold H-1B status for another company, as well as from overseas.
Qualifications for an H-1B Visa
Employers can petition for H-1B status for foreign nationals who fall under one of the following categories:
- They work in a specialty occupation that requires a bachelor's degree or higher (or the foreign equivalent) in a specialty field.
- They are taking part in a cooperative research and development project or a coproduction project under a government-to-government agreement administered by the U.S. DOD.
- They are fashion models of distinguished merit or ability.
In addition, the H-1B petition must meet the following criteria:
- There must be an employer-employee relationship between the petitioning U.S. employer and the foreign national employee
- The job must qualify as a specialty occupation by meeting one of the following criteria:
- A bachelor's or higher degree in a field related to the job or its equivalent is normally the minimum requirement for the position.
- The degree requirement is common for the position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor's degree in a field related to the position.
- The employer normally requires a degree or its equivalent for the position.
- The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree.
- The U.S. employer must obtain a certified Labor Condition Application from the U.S. Department of Labor (DOL).
- The employer pays at least the actual or prevailing wage for the occupation in the geographical area, whichever is higher.
- An H-1B visa number must be available at the time of filing the petition unless the petition is exempt from numerical limits.
Procedure and Duration of Stay
There are main steps involved in applying for H-1B status:
- The employer files a Labor Condition Application (LCA) with the DOL to establish conditions of employment.
- The employer files an H-1B petition with U.S. Citizenship & Immigration Services (USCIS).
- USCIS issues an approval notice so that the applicant can start or continue working.
- If the foreign national is outside of the United States and needs a visa in their passport, they take the approval notice and make an appointment to obtain a visa before entering the United States. Once the visa is issued, they can enter the United States to commence employment in H-1B status.
Labor Condition Application Specifications
On a completed LCA, an employer must accurately specify the following:
- Employer information (firm name, employer identification number, address, and phone number)
- Rate of pay (amount, salary/hourly, full/part-time)
- Period of intended employment (beginning and ending dates)
- Occupation information (job title and occupation code)
- Work locations
- Prevailing wage for all work locations listed
The employer must also agree to the following attestations on the LCA:
- The employer will pay the higher of the actual or prevailing wage rate, pay for nonproductive time, and offer benefits on the same basis as offered to U.S. workers.
- The employer will provide working conditions that will not adversely affect similarly employed U.S. workers.
- There is no strike or lockout in the same occupational classification on the LCA.
- ETA will be notified if either of these occur; and
- No H-1B will be placed at a site with a strike or lockout;
- The employer will notify the union or workers of the LCA filing by posting a copy for 10 days at two conspicuous locations or electronically and provided to the H-1B worker.
Processing Times: The LCA takes about seven days at the US Department of Labor. Once the LCA is certified, then the employer can file the H-1B petition with the USCIS. If the employer uses premium processing, then the case is adjudicated in 15 days. If it is filed without premium processing, it can take several months or more..
H-1B Cap and Exemptions From the Cap
Congress set the current annual "regular cap" for the H-1B category at 65,000. There is also a “U.S. Master’s Cap” of an additional 20,000 for foreign nationals who possess Master’s degrees or higher from U.S. universities. The USCIS holds a lottery in March each year for which employers are required to register foreign nationals for the H-1B cap. If there are more registrations than the allotted number of H-1Bs, then the USCIS holds a lottery and selects the registered foreign nationals on a random basis. If selected, the employer has 90 days to prepare and file an H-1B petition for the selected foreign national.
Cap Exempt Employers
There are some types of employers that are not subject to the H-1B cap. These are:
- Nonprofit organizations affiliated with universities
- Nonprofit research organizations
- Government research organizations
These organizations can file H-1B petitions for foreign nationals at any time of year without being subject to the H-1B numerical limitations.
Are You an Employer Hiring Foreign Talent With Nonimmigrant Visas?
If you are an employer seeking to hire foreign talent who currently have a nonimmigrant visa or are in need of one, you should speak with an experienced immigration attorney as soon as possible. We have been helping employers with the immigration process related to their employees since 1993 and always work towards exceeding expectations. Please contact us online or call our office directly at 202.537.4830 to discuss your specific business immigration legal needs. We service clients throughout the United States from our Bethesda, Maryland office and look forward to working with you.