Are you looking to onboard highly skilled foreign workers under H 1B visa? Here’s all you need to know.
The H 1B specialty occupation visa applies to employers seeking to hire foreign workers in occupations that require exceptional merit or academic qualification before they begin work.
What is an H 1B Visa Status?
Obtaining an H 1B visa enables an employer or US Company to sponsor a nonimmigrant worker to work in a “specialty occupation.” A specialty occupation is one that requires applying a body of highly specialized skill or knowledge and attaining at least a bachelor’s degree or its equivalent.
The H-1B provisions are intended to assist employers who are unable to get necessary business skills and knowledge from the domestic labor force by allowing for the temporary employment of foreign workers.
Safeguards and the prevailing wage
The law establishes certain rules to safeguard similarly employed American workers from being adversely affected by nonimmigrant workers’ employment, as well as to protect H-1B nonimmigrant workers.
Employers must certify to the Department of Labor that they will pay H-1B nonimmigrant workers wages that are at least equal to the wage paid to other workers with comparable experience and qualifications for the job in question, or the prevailing wage for the occupation in the intended employment area.
What is H 1B Eligibility Criteria?
Immigration services stipulates a three-fold classification criteria to qualify for an H 1b visa:
- H 1B specialty occupations
- H-1B2 DOD Researcher and Development Project Worker
- H-1B3 Fashion Model
H 1B Specialty Occupation General Requirements
The specialty occupation must need:
- The theoretical and practical application of a highly specialized body of knowledge; and
- A bachelor’s or master’s degree in the particular speciality (or its equivalent) as a minimum requirement for entry into the occupation.
Requirements for the work position
The position must match one of the following criteria in order to be classified as a speciality occupation:
- Typically, a bachelor’s degree or higher, or its equivalent, is the minimum admission qualification for the post.
- The degree requirement is widespread throughout the industry in parallel jobs within similar firms, or the work is so complex or distinctive that it can only be completed by an individual with a degree.
- Generally, employers require a bachelor’s degree or its equivalent for this employment.
- Due to the specialized and complicated nature of the specific activities, the knowledge required to do them is typically associated with the acquisition of a bachelor’s or higher degree.
Requirements for the foreign worker
The foreign worker must meet one of the following criteria in order to qualify to perform services in a specialist occupation:
- Possess a bachelor’s or higher degree from an approved college or university in the United States, as required by the speciality occupation.
- Possess a foreign degree from an accredited institution or university that is equal to a bachelor’s or higher degree required by the speciality occupation in the United States.
- Possess an unfettered state license, or certification that enables you to practice the specialty vocation completely and to engage in it immediately in the state where you wish to work.
- Have completed education, specialized training, and/or progressively responsible experience in the specialty occupation that is equivalent to earning a bachelor’s or higher degree in the specialty occupation in the United States, and have established expertise in the specialty.
The H 1B Electronic Registration process
Step 1 (needed solely for petitions for specialized occupations and fashion models)
Employer/Agent Submits LCA for Certification to the Department of Labor.
Employers/agents must apply for and receive certification from the Department of Labor for an LCA.
For additional information on LCA requirements and the DOL’s process, visit the Department of Labor’s Foreign Labor Certification page.
Step 2
Employer/Agent Completes and Submits Form I-129 to USCIS. Employers/agents are responsible for filing Form I-129, Petition for a Nonimmigrant Worker, with the appropriate USCIS processing center.
Please visit the I-129 Direct Filing Chart page for more information. The LCA certified by the Department of Labor should be filed with the Form I-129 (only for specialty occupation and fashion models). Additional filing requirements are detailed in the instructions to Form I-129.
Step 3
Prospective workers residing outside the US must apply for a visa and/or admission. Once the Form I-129 petition is granted, the potential H-1B worker who is located outside the United States may apply for an H-1B visa with the United States Department of State (DOS) at a United States embassy or consulate abroad (if a visa is required).
Regardless of whether a visa is necessary, the prospective H-1B worker must then petition for entrance to the United States under the H-1B classification with US Customs and Border Protection (CBP).
Labor condition application (LCA)
Employers/agents of a prospective speciality occupation and distinguished fashion model must get a DOL certification of an LCA.
This application requires specific attestations, failure to which the employer/agent may face penalties, prohibition from sponsoring nonimmigrant or immigrant petitions, and other consequences.
Employers/agents must certify on the application that they will adhere to the following labor requirements:
- Employers/agents must pay H-1B workers a wage that is at least as high as the wage paid to similarly qualified workers or, if higher, the prevailing wage for the position in the geographic region where the H-1B worker will work.
- The employer/agent will ensure that working circumstances are not detrimental to other similarly hired workers.
- There is no strike or lockout at the time of the labor condition application.
- The union bargaining representative has been notified or a notice has been placed at the place of employment that the labor condition application has been filed with the DOL.
What is the period of stay under H 1B visa?
You may be admitted for up to three years as an H-1B speciality occupation worker or fashion model.
Your time period may be extended, but normally cannot exceed six years, subject to certain exceptions under sections 104(c) and 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21), 8 CFR 214.2(h)(13)(iii)(D), and (E).
If your employer cancels your work before to the end of your allowed stay, your company is responsible for the reasonable costs of your return transportation.
If you willingly quit your position, your employer is not responsible for the expense of your return transportation.
What is the H 1B visa cap?
Each fiscal year, the H-1B classification has a numerical limit (ceiling) of 65,000 new statuses/visas. Additional 20,000 petitions are excluded from the cap if they are filed on behalf of beneficiaries who have earned a master’s degree or higher from a US institution of higher education.
In addition, H-1B workers who apply for or work at an institution of higher education, a nonprofit research organization, or a government research organization are not subject to the cap on the number of workers who can be hired.
What is the Premium Processing Fee of H1B?
Each registration is ten dollars.
The registration is only for the benefit of a single beneficiary.
Before registering for the H-1B cap, applicants or their representatives must post the $10 non-refundable H-1B processing fee for each beneficiary.
Credit cards have a daily transaction limit of $24,999.99 per credit card, per day.
Additionally, you can:
- Utilize a checking account to conduct transactions. The checking account information (account and routing number) must come from a US-based financial institution; or
- Make purchases with a debit card issued by a banking institution based in the United States.
You may continue to use your credit card, but your daily credit card transactions will be limited to a maximum of $24,999.99 per card.
Family members and dependents of H 1b visa holders
Family members including unmarried children under 21 years and spouses may seek admission under the H 4 nonimmigrant classification. Starting May 26, 2015, some H 4 dependent spouses of H 1B visa nonimmigrants can file an Application for Employment Authorization (Form I-765), as long as the H 1B foreign worker has commenced the process of obtaining employment-based lawful permanent residency.
