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H-1B Visa: Non Immigrant Visa

H-1B Visas for Persons with Theoretical or Technical Expertise

If you’re interested in hiring a foreign worker, you may be able to bring them to the United States on an H-1B visa. This guide explains H-1B visas so you can make the right choices for your workforce.

What is an H-1B Visa?

The H-1B visa is a nonimmigrant work visa that allows U.S. employers to temporarily employ foreign workers in specialty occupations. A specialty occupation is one that requires the theoretical and practical application of a body of highly specialized knowledge, and a bachelor’s degree or higher in the specific specialty (or its equivalent) is normally the minimum requirement for entry into the occupation.

What Are H-1B Specialty Occupations?

Some examples of occupations that qualify as specialty occupations include:

  • Accountants
  • Architects
  • Engineers
  • Financial analysts
  • Graphic designers
  • Market research analysts
  • Medical doctors and surgeons
  • Scientific researchers

What Are H-1B DOD Researcher and Development Project Workers?

The Department of Defense (DOD) has a separate H-1B category for workers who are engaged in basic research, applied research, or advanced development projects in a DOD intramural or extramural research program. This category is limited to 26,000 visas per year.

Who Qualifies as an H-1B Fashion Model?

To qualify for an H-1B3 visa, the applicant must demonstrate that they are a fashion model of distinguished merit and ability, and that their employment will substantially assist in achieving recognition of the United States as a center of excellence for modeling.

Can You File for Your Own H-1B Visa?

You cannot file for your own H-1B visa. Your employer must file a petition on your behalf with the U.S. Citizenship and Immigration Services (USCIS).

What is a Labor Condition Application?

A Labor Condition Application (LCA) is a document that an employer files with the Department of Labor (DOL) to establish that the wages and working conditions of H-1B workers will not adversely affect the wages and working conditions of U.S. workers.

How Does an Employer Get an LCA?

The employer must first obtain an LCA from the DOL. The employer then files the LCA with USCIS as part of the H-1B petition process.

Often, people choose to work with an immigration attorney to get an LCA. There’s a lot of paperwork involved, and there are many steps to the process. Typically, the employer must have a valid LCA before hiring a worker and before the worker can come to the United States.

First, an immigration attorney helps the employer fill out ETA 9035. Then, the lawyer files it with the Department of Labor. The Department of Labor will look at the wage rate and make sure it’s high enough. They’ll also check to see if there are any US workers who can do the job.

If everything looks good, the Department of Labor will approve the LCA and send it back to the immigration attorney. The lawyer will then file it with USCIS as part of the H-1B petition process.

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H-1b Visa Attorneys - Warren Law FirmHow Can An Employer File an H-1B Visa for a Worker?

To file for an H-1B visa for a worker, the employer should follow these steps:

  1. The employer should have a valid LCA from the Department of Labor. Without an LCA, the application may not go any further. (See the earlier section, “How Does an Employer Get an LCA?” for more information.)
  2. The employer should file a petition on the worker’s behalf with USCIS, using Form I-129. The employer should include the approved LCA with the petition.
  3. The prospective worker applies for a visa for admission to the United States.
  4. After the petition is approved, the worker can come to the United States and start working in their specialty occupation.

Here’s a closer look at each.

Step 1: The Employer Files for an LCA

The first step is for the employer to file an LCA with the Department of Labor. The employer can do this with the help of an immigration attorney.

As part of the LCA process, the employer must attest to the following:

  1. The wage that they will pay the H-1B worker is high enough. It must be at least the prevailing wage for the occupation in the area of employment.
  2. There is no strike or lockout at the place of employment.
  3. Working conditions will not adversely affect other workers at the employer’s company.
  4. The employer will give notice to union representatives (if there is a union) or to workers (if there is no union) about the hiring of H-1B workers.
  5. The employer will maintain a public access file with certain information about the H-1B workers, including the LCA.
  6. The employer has not displaced any U.S. workers in the past 90 days and will not do so in the next 90 days.
  7. The employer has not laid off any U.S. workers in the past 90 days and will not do so in the next 90 days.
  8. The employer has not moved the workplace of any U.S. workers in the past 90 days and will not do so in the next 90 days.

After the employer files the LCA, the Department of Labor will review it to make sure that the employer has met all of the requirements. If everything looks good, the DOL will approve the LCA and send it back to the employer (usually within 7-14 days). The employer will then need to keep the approved LCA in their public access file.

Step 2: The Employer Files Form I-129

Once the employer has an approved LCA, they can move on to the next step: filing Form I-129 with USCIS. This is the petition that the employer will use to request an H-1B visa for the worker. Usually, employers work closely with immigration attorneys to do this.

The employer will need to include the following with their I-129 petition:

  1. The approved LCA from Step 1.
  2. A copy of the worker’s diploma or degree (if they have one).
  3. Documentation showing that the worker has the experience and credentials necessary for the job they’re applying for. This might include things like transcripts, letters from previous employers, licenses, etc.
  4. A job offer letter from the employer to the worker. This should state the salary that the worker will be paid, as well as the duties they will be expected to perform.
  5. Proof that the employer has enough money to pay the worker’s salary. This might include tax documents, financial statements and similar documentation.
  6. Documentation showing that the employer has made an effort to recruit U.S. workers for the position (if required). This might include ads placed in newspapers or online, job fairs attended and a variety of other types of proof.

After the employer has gathered all of the necessary documentation, they can submit the petition to USCIS. USCIS will then review the petition to make sure that everything is in order. If it is, they will approve the petition and send it back to the employer.

Step 3: The Worker Applies for a Visa or Admission

After the employer has received approval from USCIS, the next step is for the worker to apply for a visa for admission to the United States. The worker can do this by going to a U.S. consulate or embassy in their home country and applying for a visa.

In order to get a visa, the worker will need to show the following:

  1. That they have an approved H-1B petition from their employer.
  2. That they have a valid passport.
  3. That they have proof of ties to their home country (such as a property, family, etc.). This is to show that they don’t intend to immigrate to the United States permanently.
  4. That they have enough money to support themselves while in the United States.
  5. That they are in good health and have had all required vaccinations.
  6. That they are not inadmissible to the United States for any reason (such as having a criminal record).

If the worker is already in the United States, they can apply for a change of status to H-1B status. In order to do this, they will need to file Form I-129 along with the required documentation. USCIS will then review the petition and, if everything is in order, they will approve the change of status.

After the worker has been approved for an H-1B visa or change of status, they can start working for their employer in the United States. The H-1B visa is valid for up to three years, and it can be renewed once for an additional three years. After that, the worker will need to return to their home country for at least one year before they can apply for another H-1B visa.

Do You Need to Talk to an Immigration Attorney About Obtaining an H-1B Visa?

If you need to talk to an immigration attorney about getting an H-1B visa for a worker, we’re here to help. Call our office today to schedule a consultation; we can answer your questions about everything from LCAs to the visa process.

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