H-1B Visas

The H-1B visa is frequently used and relied upon to allow a foreign national to work in the United States for a specific employer, at a particular location, in a “specialty occupation.” The U.S. Citizenship and Immigration Services (CIS) defines “specialty occupation” as one which requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.

The petition for an H-1B visa must be filed by an employer willing to offer a foreign national a job in a specialty occupation at a wage at least as high as the prevailing wage for the particular position in the area of intended employment. The H-1B visa authorizes employment only at the location(s) specified in the petition and Labor Condition Application (LCA) and in the position described by the petitioning employer. Changes in the job location, employment, employer, or position will usually require filing a new or amended H-1B petition.

To apply, the employer must first file the LCA with the Department of Labor (DOL) that attests to the payment of wages at an amount equal to or greater than the prevailing wage, the lack of a current strike or lockout, that the working conditions of others will not be negatively affected by the employment of the H-1B employee, and that the notice of the LCA filing was posted or given to the appropriate union official. The H-1B visa petition may be filed with the CIS only after the DOL approves the LCA.

The law currently requires the employer to pay the fees associated with the H-1B , including the attorney fees and costs and filing fees which include payments to the US Dept. of Homeland Security of a $325 base filing fee, a $1500 ($750 for employers of fewer than 25) training fee (unless it is an exempt organization or the case qualifies for an exemption), and a $500 fraud detection and prevention fee. The CIS usually takes approximately two (2) to four (4) months to adjudicate an H-1B visa petition. The adjudication process, however, can be trimmed to fifteen (15) days, with the use of “premium processing,” for which service the CIS charges an additional $1225 fee.

In adjudicating the H-1B visa petition, the CIS will either approve the petition, request additional evidence, or deny the petition. Upon approval, a new H-1B employee may begin work in the U.S. If a foreign national is already in the U.S. on an H-1B visa with another employer and is maintaining status, he/she can start work with a new H-1B employer once the new H-1B visa petition is filed, rather than waiting for approval of the new H-1B petition.

The CIS may approve H-1B visa petitions for initial periods of up to three (3) years and may extend the visa for a maximum total of six (6) years. The law now allows for extensions beyond the sixth year in cases where either an immigrant petition (I-140) or an Application for Alien Labor Certification has been pending for three hundred sixty-five (365) days or more.

The H-1B is a very helpful visa for both American businesses and foreign national workers. When processed efficiently and effectively, the visa can benefit all concerned.