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H-1B -The "Specialty occupation" visa

Every year, U.S. employers seeking highly skilled foreign professionals must submit their petitions on April 1st to U.S. Citizenship and Immigration Services (USCIS). With a statutory limit of 65,000 visa numbers available for new hires—and 20,000 additional visa numbers for foreign professionals who graduate with a master’s degree or doctorate from a U.S. university— demand for H-1B visa numbers has exceeded the supply in recent years and the 85,000 visas are quickly exhausted. 

Overview of the H-1B Visa

The H-1B is a temporary (nonimmigrant) visa category that allows U.S. employers to petition for highly educated foreign professionals to work in “specialty occupations” that require at least a bachelor’s degree or the equivalent. Jobs in fields such as mathematics, engineering, and technology often qualify. Typically, the initial duration of an H-1B visa classification is three years, which may be extended for a maximum of six years.

Before the employer can file a petition with USCIS, the employer must take steps to ensure that hiring the foreign worker will not harm U.S. workers. First, employers must attest, on a labor condition application (LCA) certified by the Department of Labor (DOL), that employment of the H-1B worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. Second, Employers must also provide existing workers with notice of their intention to hire an H-1B worker.

The H-1B Petition Process

  • WAGE DETERMINATION. The Department of Labor (DOL) requires that an employer pay the H-1B beneficiary the prevailing wage or the actual wage paid to other workers having the same job, whichever is higher. The request for PW is submitted to the DOL for a determination and it will be part of the LCA (Labor Condition Application.

  • NOTICE OF INTENT TO HIRE H-1B WORKERS. On or within 30 days before the date the LCA is filed, the employer must provide notice of its intent to hire H-1B workers. The employer must provide this notice to the bargaining representative of workers in the occupation in which the H-1B worker will be employed. If there is no bargaining representative, the employer must post such notices in conspicuous locations at the intended place(s) of employment for 10 (ten) days, or provide it electronically (email).

  • LABOR CONDITION APPLICATION (LCA) After the actual and prevailing wages have been obtained, the LCA (Form ETA 9035) is submitted it to the DOL for certification. Once a certified LCA is received, a signed copy will be given by Employer to Beneficiary. The LCA will be included with the H-1B petition that is filed with USCIS.

  • THE H-1B PETITION AND SUPPORTING DOCUMENTATION. The non-immigrant worker petition (Form I-129) is submitted to USCIS along with the following documents:

  1. Copy of employment letter describing the job title, job duties, job requirements, salary offered etc.

  2. Copy of any required license or official permission to practice the occupation in the state of intended employment

  3. Evidence that the proposed employment qualifies as “specialty occupation”

  4. Evidenc e showing that the Beneficiary has the required college degree:

  • copy of the BA/BS or MA/MS required by the specialty occupation, OR

  • copy of foreign degree and evaluation that shows equivalency with U.S. required degree, OR

  • evidence of educ ation + experience = U.S. required degre

  • PROCESSING OF I-129 PETITION. From the time USCIS receives the petition, it generally takes 120-150 days to adjudicate the case, unless premium processing was chosen (15 business days). If the case is approved, the employer will receive Form I-797 approval notice along with Form I-94 card indicating the employee’s length of valid immigration status. If the Beneficiary is not currently in H-1B status, the effective date of employment will be October 1st.

USCIS Fees (government fees) based on employer’s number of employees:

  • Regular process (decision made by USCIS within approx. 4-6 months):

    • if the company has <25 employees = $1,710

    • if the company has >25 employees = $2,460

  • Premium process (decision made by USCIS within approx. 3 weeks): an additional fee of $1,410

If you would like to learn more about filing an H-1B petition for your employee, click here to schedule a consultation.