An H-1B visa is a nonimmigrant visa for foreigners for temporarily employment in the United States in a “specialty occupation”, an occupation that normally requires a bachelor’s degree in a specialized field. The H-1B petition must be filed by a U.S. employer and, if approved, allows the foreign individual to work solely for that employer.  H-1B visas are possible for both full-time and part-time positions. H-1B visas are also available for fashion models of distinguished ability.

To be eligible for an H-1B visa, the position offered must normally require a bachelor’s degree in a specialized field and the foreign beneficiary must hold such a degree or its equivalent.  A foreign degree must be evaluated as equivalent to a U.S. degree.  Progressively responsible professional experience can be substituted for college coursework (three years of experience equivalent to one year of study) for the purposes of an equivalence evaluation.  For those specialty occupations that require state licensure, a state license is sufficient for the H-1B.

Before filing an H-1B petition, the employer must file a Labor Condition Application (LCA) with the Department of Labor (DOL) and the DOL must certify the LCA. Employers make the following attestations on the LCA:  

1.	The employer is offering the proposed H-1B employee the higher of either the actual wage it pays to other individuals similarly employed or at least 95% of the prevailing wage for that position in the geographical area of intended employment, based on DOL statistics.
2.	The proposed H-1B employee's working conditions will not adversely affect the working conditions of other workers in similar situations.
3.	There are no strikes, or work stoppages in the course of a labor dispute.
4.	The employer has given its employees notice of the filing of the LCA.
5.	The employer has or will provide a copy of the LCA to the H-1B employee.
6.	The LCA must also disclose the wage offered, the prevailing wage, and the source from which the prevailing wage was determined.

An approved H-1B petition is valid for a period of up to three years, but may not exceed the validity period of the Labor Condition Application (LCA). The visa may be extended for an additional period of three (3) years. A foreign individual may spend only six (6) years in H-1B status unless a labor certification application or I-140 immigrant visa petition has been filed for him at least one year before this six-year period expires. Then he may apply for extensions in one-year increments.

The spouse or unmarried minor children (under 21 years of age) of the H-1B visa holder may enter the United States in H-4 status as H-1B dependents. 

The H-1B petition must be filed at an B.C.I.S. Service Center that has jurisdiction over the employer. If the employee is in the United States and eligible to change nonimmigrant status, the B.C.I.S. will issue an approval notice with a new I-94 card. If the employee  is unable to change status in the U.S. or is not present in the U.S., he must apply for an H-1B visa at a U.S. consulate abroad.

To request a consultation regarding an H-1B visa, please contact our office here.