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H-1B Summary

Summary

The H-1B category applies to foreign nationals coming temporarily to the United States to perform services in a "specialty occupation."  Also included are fashion models of "distinguished merit and ability."  Excluded from this category are agricultural workers and persons of extraordinary ability or achievement in the sciences, education or business.  In essence, the position offered and the foreign national must meet certain threshold levels of professional standing.

Specialty Occupation Requirements

specialty occupation is one which meets one of the following standards:

  1. At least a baccalaureate (bachelor's-level) degree or its equivalent is normally the minimum requirement for entry into the occupation; or
  1. The baccalaureate degree requirement is common to the industry in parallel positions, or the particular position is so complex or unique that it can be performed only by a person holding a degree; or
  1. The employer normally requires a degree or its equivalent for the position; or
  1. The specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with a bachelor's (or higher) degree.
Foreign National's Qualifications

The foreign national must meet one of the following criteria:

  1. Hold a U.S. baccalaureate (usually four-year post-secondary) or higher degree required by the specialty occupation; or
  1. Hold a foreign degree determined to be equivalent to a U.S. bachelor's or higher degree; or
  1. Hold an unrestricted state license, registration, or certification which authorizes the foreign national to fully and immediately engage in the specialty in the state of intended employment; or
  1. Have education, specialized training, and/or progressively responsible experience equivalent to a U.S. bachelor's or higher degree in the specialty occupation, and have recognition of expertise in the specialty.

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 university/college-level education the foreign national lacks.

Procedure

U.S. employer (or a foreign employer with a legal presence in the United States) must initiate the process to have the foreign national placed in the H-1B category. The U.S. Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS) both are involved, as is the U.S. Department of State in some instances.

Labor Condition Application

The employer must file a Labor Condition Application (LCA) with the DOL to attest to the following:

  1. H-1B workers will be paid the actual wage level paid by the employer to all other workers with similar experience and qualifications for the specific employment, or the prevailing wage, whichever is higher;
  1. Employment of H-1B workers will not adversely affect the working conditions of workers similarly employed;
  1. No strike, lockout, or work stoppage in the occupation currently exists at the place of employment; and

d.     Notice of the labor condition application has been provided to workers employed in the occupation at the place of employment.

Before filing its application, the employer must collect and retain evidence regarding the prevailing wage for the occupation, the terms and conditions of employment, and compliance with the notice requirement (a, b and d, above).  When the DOL certifies (approves) the employer's labor condition application—something it must do in seven business days but does almost instantly because LCAs are almost always electronically filed—the employer may proceed with the next step.

Visa Petition

The employer must submit a petition with supporting documentation to the USCIS to establish both that the position calls for a specialty worker (professional) and that the foreign national is him- or herself a specialty worker (degreed or degree-equivalent professional).

If the petition is GRANTED and the foreign national is abroad, USCIS will notify the designated U.S. consulate of the petition's approval; the foreign national may then apply for an H-1B visa stamp at that U.S. consulate before travelling to the United States.

If the foreign national is lawfully in the United States when the employer files its petition, in most cases he/she may apply simultaneously to the USCIS for a change of nonimmigrant status to H-1B.  USCIS makes the decision on the change of status request at the same time as USCIS decides the employer's petition.

If the petition is DENIED, the employer may appeal the denial to the USCIS Administrative Appeals Office in Washington, DC.  There is no appeal from an USCIS refusal to grant the foreign national a change of nonimmigrant status to H-1B, nor is there any formal appeal from a U.S. consular official's refusal to issue an H-1B visa.

Portability
 

A foreign national previously issued an H-1B visa or  H-1B status, who is present in the United States, whose authorization to remain in the U.S. has not expired, and who has not worked illegally, may begin working for a new H-1B employer as soon as the new employer files an H-1B petition for that foreign national.

Filing Fees

► Basic Filing Fee.  There is no filing fee associated with a Labor Condition Application.  The basic H-1B petition filing fee, payable by all employers to USCIS, is $460. 

► $1,500 Training Fee.  In addition, the law requires certain employers to pay an additional $1,500 filing fee to USCIS in most cases.  Employers must pay this fee when they file H-1B petitions seeking:

  1. an initial grant of H-1B status; or
  2. an extension of stay for foreign nationals currently in H-1B status; or
  3. authorization for a change in employment for foreign nationals currently in H-1B status.

Employers may not pass along this fee along to the foreign national. Employers with 25 or fewer employees must pay a reduced Training Fee of $750.

Exempt Employers.  The only organizations exempt from having to pay the $1,500 fee are:

  1. institutions of higher education and related or affiliated nonprofit entities;
  2. nonprofit or governmental research organizations;
  3. primary or secondary educational institutions;
  4. nonprofit entity engaged in established curriculum-related clinical training of students.

► $500 Fraud Protection and Detection Fee.  Employers who file initial H-1B petitions for foreign nationals to be classified as an H-1B specialty worker must pay a $500 Fraud Protection and Detection Fee.

Time and Other Limits
 

An H-1B petition may be approved for an initial period of up to three years, and may be extended (upon application) for an additional three years.  The maximum length of time that a foreign national may remain continuously in the United States as an H-1B worker is six years in the aggregate -- in other words, six years in total.  The number of different employers for which the foreign national has worked is not important.  In some cases, it may be possible to extend H-1B status beyond six years if the permanent resident (“green card”) process has been underway for more than 365 days.

A foreign national may work for more than one employer, provided that each employer has filed and had approved a Labor Condition Application and an H-1B petition for that person.

Spouses and Children
 

Spouses and children are accorded "H-4" classification.  They may accompany or later follow to join the principal H-1B worker, but they may not work in the United States, though attending school is permitted.  They may remain in the United States for the same length of time as the principal H-1B worker. Certain H-4 spouses may apply for work authorization if the principal H-1B worker has been sponsored for permanent residence.  H-4 spouses and children may remain in the United States for the same length of time as the principal H-1B worker.

 

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