H-1B Visa

H-1B Specialty Workers

The laws regarding the H-1B classification are in constant flux and applicants seriously considering this category as a means of working in the U.S. on a temporary basis should stay informed and updated as much as possible. Because an applicant’s circumstances and the circumstances of his or her dependent family members may require special attention, the following information is not tailored to any one individual but provides general information about this category.

The H-1B specialty worker category applies to foreign workers coming to the U.S. temporarily to perform services in a specialty occupation, which includes a variety of fields ranging from architecture and engineering to health and medicine. The current annual cap on H-1B admissions is 85,000 workers.

Criteria for H-1B specialty workers

The H-1B specialty worker category applies to a foreign worker coming temporarily to perform services in a specialty occupation, which requires the theoretical and practical application of highly specialized knowledge requiring completion of a specific course of higher education. Generally, in order to qualify for H-1B classification, the applicant must have at least a U.S. bachelor’s degree or its equivalent AND the job sought must require at least a bachelor’s degree or its equivalent. Since H-1B is not s self-petitioning category, the applicant must have a sponsoring employer in the U.S.

Dependents

Spouse and unmarried children under 21 years of age of H-1B workers are entitled accompany to join the H-1B worker as H-4 dependents. However, dependents cannot work under H-4 classification. H-4 dependents can attend schools in the U.S. without obtaining a student visa.

Steps

Because the H-1B classification requires a U.S. sponsor, the applicant must seek a U.S. employer who is willing to hire the applicant temporarily, pay the applicant the prevailing wage for the proffered position and file the petition and supporting documents with the United States Citizenship and Immigration Services (USCIS).

The petition process begins with the sponsoring employer filing a Labor Condition Application (LCA) with the Department of Labor. Upon obtaining an approved LCA, the employer files the petition with the USCIS. The petition must be filed with documentation that shows the job is a professional or specialty occupation and that the foreign worker is qualified for the position.

The sponsoring employer must file Form I-129 and the required supplement forms with the USCIS service center having jurisdiction over the place of intended employment.

After approval, USCIS will send Form I-797 (Notice of Action) to the employer or attorney of record. If the foreign worker is outside the United States, the employer then notifies the foreign worker of the petition approval and sends all the required documents to the applicant who can then apply for his/her H-1B visa at an appropriate U.S. consulate in his/her home country.

Period of stay

The initial approval of an H-1B classification may be up to three years, renewable for another three years. The maximum period of stay is six years. Under certain circumstances (when the alien has already started the process for obtaining the permanent residence status in the U.S.), the H-1B worker may extend his/her status beyond the six-year limitation.

Basic documents required for H-1B Classification Petition

The U.S. employer must file the petition with:

• Labor Condition Application certified by the U.S. Department of Labor; and
• Copies of evidence that the proffered job qualifies as a specialty occupation.

The foreign national must submit evidence that he/she has the required degree by submitting either:

• A copy of his/her U.S. baccalaureate or higher degree related to the specialty occupation;
• A copy of a foreign degree determined to be equivalent to the U.S. degree; or
• Copies of evidence of education and experience, which is equivalent to the required U.S. degree

Fees

$320.00	Base filing fee:
$1,500.00	Employer fee, unless exempt under Part B of the H-1B Data Collection and Filing Fee Exemption Supplement of the form I-129.A U.S. employer with a total of 25 or less full-time equivalent employees in the   United States (including any affiliate or subsidiary of the employer) is only obligated to pay the $750 fee.
$500.00	Fraud prevention and detection fee.Effective March 8, 2005.
Optional:
$1,000,00	Premium Processing/fast track processing fee to guarantee that your case will be adjudicated by the   USCIS within 15 days, or the fee will be refunded.