The H-1B Visa

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Temporary work permits for talented people

The H-1B visa program allows U.S. employers to hire foreign nationals as nonimmigrant workers. Through the program, talented foreign nationals are allowed to enter the United States to work in specialty occupations on a temporary basis. Specialty occupations can include engineers, architects, mathematicians, educators, research specialists, biologists, and others. Foreign fashion models can also use H-1B3 visas to work with a designated employer for up to three years.

Employers throughout the United States have taken advantage of the H-1B visa to bring qualified specialty occupation workers to work temporarily in the U.S. for years.

Spouses and children of H-1B workers may also come to the U.S. under an H-4 visa.

To be eligible for an H-1B visa, the foreign worker must possess specialized knowledge for which he or she has obtained at least a bachelor’s degree (or equivalent). Both the U.S. employer and the potential employee must also meet all USCIS conditions and regulations. The requirements are meant to make sure that both employer and employee are in compliance with standards set forth by the United States Department of Labor (DOL). A major part of meeting these requirements is to file a Labor Condition Application, often referred to as an LCA.

H-1B Visa Requirements

Following are some of the basic requirements that must be met by both the employer and the potential employee.

*- Please note that requirements listed below are current at the time of writing but some portions of those requirements are in litigation and subject to change. Please contact us for the most up-to-date information regarding all current H-1B Visa requirements. -*

Job Position Requirements

The job being offered must be filed as a specialty occupation. In the majority of cases, this means that the position requires someone who has received a bachelor’s degree or one or more advanced degrees through higher education. There are, however, some specific positions where a degree is not mandatory because of the job’s particular complexity.

Education Requirements

The degree held by the potential employee must come from an accredited college or university. It must also be related to the H-1B specialty occupation being offered. If the degree is from a school or organization outside of the United States, it must signify the equivalent education of a U.S. degree.

With a degree, the potential H-1B employee is not required to have previous work experience. Work experience can, however, be substituted for a degree in some cases. As a general rule, for each year of university required for the relevant degree, three years of actual work experience can be substituted.

USCIS And Department Of Labor Requirements

Once the Department of Labor approves the LCA, the employer will need to file form I-129, more commonly referred to as H-1B petitions. In addition, all of the following requirements must be met:

  • The foreign worker must be paid the “prevailing wage” for his or her position. The prevailing wage is determined as the average actual wage paid to U.S. employees in a similar position.
  • Employment of the foreign professional must not have a negative impact on U.S. working conditions in similar fields.The employer is required to post internal notice of filing for the H-1B visa.
  • There can not be an ongoing strike, layoff, or lockout in the intended field of work.
  • The employer must be in compliance will all public examination processes.
  • If the employer terminates the foreign worker’s employment before the designated period, the employer will be required to pay all expenses incurred by the worker to move back to his or her home country.
  • The employer can not grant foreign professional employment until the United States Citizenship and
  • Immigration Services gives approval.

Requirements For The U.S. Employer

  • The employer must demonstrate the availability of funds necessary to pay the foreign professional.
  • The employer must provide an official job offer that contains documented evidence of a legitimate business need for hiring the potential employee.

Annual H-1B Cap And Exemptions

For each fiscal year, there is a cap of 65,000 visas. Some visa applications, however, are exempt from this yearly limit. Those with a United States master’s degree or higher degree are exempt from the H-1B cap if the petitioner is among the first 20,000 applications filed. Potential H-1B workers being offered employment at an institution of higher learning are also exempt from the cap. Jobs offered by some nonprofit entities, nonprofit research organizations, and government research organizations are exempt from the cap as well.

Helping Qualified Workers Obtain H-1B Visa Entry Into The United States

A limited number of foreign specialty workers are admitted to the U.S. each year to work on a temporary basis. In Southern California, we at the Bolour / Carl Immigration Group have helped many temporary workers obtain the visas they need to work here. We also help family members of H-1B foreign workers to be classified under the H-4 category and obtain visas.

An Immigration Attorney At The Bolour / Carl Immigration Group Can Explain Your Options

Please contact us to schedule a no-obligation initial consultation to discuss your H-1B worker visa needs. Our team of knowledgeable and experienced immigration lawyers is here to answer any questions you may have about obtaining an H-1B non-immigrant worker visa. You can reach our lawyers at our Los Angeles, Palm Springs, or Salinas, California offices by calling 323-857-0034 or you can contact us online anytime.

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