H-1B Work Visas for Professionals

Employers in the United States that wish to employ foreign workers in professional positions called “specialty occupations” may file petitions with the USCIS requesting H1B visa status.

The temporary work visa (H-1B) allows professionals to enter the U.S. and accept temporary employment within their profession. This visa is often utilized by persons holding at least a four-year degree or its equivalent such as engineers, teachers, accountants, computer professionals, researchers, architects, business managers, computer scientists, and other professionals.

To qualify the alien must hold at a minimum a four year degree or its equivalent and have a job offer from an employer in the U.S. who offers to pay the alien the prevailing wages for the particular position. The H-1B visa is issued initially for a maximum period of three years with extensions available for up to six years.

The visa is subject to annual quota restrictions and is often sought by foreign nationals who have completed their professional training either in the United States or abroad.

Due to the quota or limit on the number of visas available, there is often an unmet demand for the visa which caused the USCIS to hold an annual lottery awarding visas to only those selected.

Advantages:

Permission to Work (but only for the petitioning employer);
The professional is allowed to receive a salaried income from the employer;
The visa is long-lasting (up to six years);
The visa can be converted to lawful permanent residence through the petition of the sponsoring employer;
Spouse and children can accompany the H-1B visa holder (although as H-4 visa holders they are only authorized to work in limited circumstances);
Citizens of any country can qualify;
Social Security Card and State ID can be issued;
Spouse and children are permitted to attend school or college; and
It is possible to have multiple H-1B employers with more than one H-1B visa petition in effect simultaneously, allowing the H-1B temporary professional to work for multiple employers during the same time period.

H-1B Visa Requirements

Professional:

The applicant must possess the appropriate academic degree or equivalent by experience through progressively responsible positions.
If the applicant possesses a foreign degree, the Immigration Service may require a "credential evaluation". These evaluations are conducted by specialized organizations for a fee paid directly to the evaluating organization.

Employment:

There must be an employer in the United States offering the professional employment.
The offer of employment must be to perform services within a “specialty occupation”, which requires theoretical and practical application of a body of highly specialized knowledge and a bachelor’s or higher degree in the specific specialty as a minimum for entry into the occupation.
The offer of employment may be for full or part time employment.

Licensure:

Where licensure is required to practice a profession, the applicant must hold appropriate licensure under state law.

Employer:

The employer must complete the Labor Condition Application procedure with the U.S. Department of Labor (DOL).
The Department of Labor must approve the employers Labor Condition Application (LCA).
The employer must agree to pay the fees associated with filing the H-1B petition and if the employer terminates employment prior to the end of the authorized employment, the employee's transportation costs to his or her country of origin or last residence.

H-1B Visa Limitations

Employer:

Employment may not begin until the Immigration & Naturalization Service has issued its approval and the appropriate visa issued.

Changing Employers:

Employers may be changed during the six-year H-1B visa duration, but only after approval of the new employer and by the USCIS.

H-1B Visa Quota:

The H1B visa (specialty occupation) is subject to an annual numerical quota.

Spouse & Children Usually Not Allowed to Work:

The spouse and children of the H1B visa holder are not permitted to work, unless the H-1B holder is the beneficiary of an approved I-140 petition or the petition was pending for over 365 days prior to the expiration of the beneficiary's sixth year in H-1B status.

H-1B Visa Procedure

Step 1: Determine the Prevailing Wage

Determine the Prevailing Wage for the proposed H-1B specialty occupation.
Click here to obtain the prevailing wage for the occupation from the Foreign Labor Certification Data Center.

Step 2: Labor Condition Application (LCA) - Form ETA 9035

The employer petitioning for H-1B status must file a Labor Condition Application (LCA) with the U.S. Dept of Labor.
The LCA (form ETA 9035) must be certified by the DOL before the H-1B petition is filed with the Dept. of Labor.

Step 3: File Petition with USCIS - Form I-129

The employer files with form I-129 including the applicable supplements and supporting documentation with the USCIS. A decision is usually issued in 2 to 5 months (or 15 business days is premium processing is used). Sometimes USCIS issues a Request for Evidence (RFE), requesting additional evidence to support the H-1B petition.

Required Documents

The certified LCA from the Department of Labor (DOL).
Evidence the proposed employment qualifies as a specialty occupation (one which requires the theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation and the completion of a specific course of study, culminating in a bachelor's degree or higher in a specific specialized occupation).
Written contract between the employer and beneficiary or a summary of the terms of the oral agreement under which the beneficiary will be employed.
Evidence the alien satisfies the educational requirements to work in the specialty occupation:
- A copy of the person’s U.S. bachelorette or higher degree, which is required by the specialty occupation;
- A copy of a foreign degree and evidence it is equivalent to the U.S. degree; or
- Evidence of education and experience which is equivalent to the required U.S. degree.
A copy of any required license or other official permission to practice the occupation in the state of intended employment (if applicable).
Evidence that the beneficiary maintained legal status in the U.S. (if filing a change of status or extension of stay).

‍

At the Law Offices of Sturman & Associates we have represented numerous companies filing H-1B visa petitions for workers in specialty occupations. We are ready to assist you in all your H-1B needs.