A prospective U.S. employer may petition for an alien worker to temporarily come work in the United States. The job offer must be in a specialty occupation requiring at least a U.S. Bachelor’s degree or its foreign equivalent, and the alien worker must qualify to accept the offered job. Besides specialty occupation, there are special rules for alien workers coming to the U.S. to be employed as Department of Defense Researchers, Development Project Workers, and Fashion Models.
H-1B Visa Requirements
H-1B Specialty Occupations
The job must meet one of the following criteria to qualify as a specialty occupation:
- Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position
- The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree
- 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 foreign national must qualify to accept the job offer by proving they:
- Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university
- Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation
- Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment
- Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty
Labor Condition Application
The prospective employer must obtain a certification of a Labor Condition Application (LCA) from the DOL. This application includes certain attestations, a violation of which can result in fines, bars on sponsoring nonimmigrant or immigrant petitions, and other sanctions to the employer.
The employer must attest:
- They will pay the beneficiary a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for your position in the geographic area in which you will be working.
- They will provide working conditions that will not adversely affect other similarly employed workers. At the time of the labor condition application there is no strike or lockout at the employer place of business. Notice of the filing of the labor condition application with the DOL has been given to the union bargaining representative or has been posted at the place of business.
Period of Stay
H-1B nonimmigrants are admitted for a period of up to three years. Prior to the expiration of the initial three year period, H-1B nonimmigrants may extend their visas for an additional three years. The maximum period of stay on H-1B is six years unless an approved Labor Certification or I-140 is secured prior to the expiry of the H-1B.
There is an annual numerical limitation of 65,000 H-1B visas each fiscal year. An additional 20,000 H-1B visas are set aside for foreign nationals holding a U.S. master’s degree or higher.
Additionally, 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.
Dependent Spouses and Children of H-1B nonimmigrants may qualify for H-4 status. Family members on H-4 status are not work authorized and therefore cannot engage in employment in the U.S.