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H-1B visas

The H-1B visas provide an opportunity for foreign employees to work and live in the US while employed temporarily in a "specialty occupation." A specialty occupation is a position that requires the theoretical and practical application of a body of highly specialized knowledge and the attainment of a Bachelors or higher degree (or equivalent experience) in the specific specialty as a minimum for entry into the occupation in the United States.  In order to obtain an H-1B visa, employees must possess full state licensure to practice in the position (if required) and provide evidence of the completion of the required degree, or experience in the specialty equivalent to the degree and recognition of expertise in the specialty. H-1B visas are available for an initial term of up to three years and may be extended for an additional period of three years.
Quota Limitations
The United States limits the number of H-1B visas to 65,000 per year, plus 20,000 H-1B visas for foreign nationals who hold Masters’ Degrees from US universities.
Each year, the application period for new H-1B requests opens on April 1. However, H-1B visas only commence as of October 1 (the first day of the federal fiscal year). In many years, the H-1B numerical allotment has been exhausted early in the application cycle. There are, however situations, instances in which an H-1B visa application will not be subject to the H-1B quota. The following is an outline of the most common cap-exempt situations:
  • Universities
  • Non-profit organizations affiliated to university institutions
  • H-1B visa extension requests
  • Government and private research institutions
  • Physicians with J-1 waivers
Employers are required to pay the "prevailing wage" to H-1B workers. The regulations of the Department of Labor require that the wages paid to an H-1B worker be the higher of: the actual wage rate paid to other similarly qualified employees, or the prevailing wage for the occupational class in the area of employment.
The "actual wage" is determined by examining wages paid to the employees who perform comparable duties and have similar experience, skills and education. Determination of the "actual wage" must be adequately documented by the employer. The "prevailing wage" is determined by examining wages paid to employees in similar occupations in the general area of employment. If the employer fails to pay the higher of the actual or prevailing wage, the company can be subject to requirements to pay back wages and fines and may be barred from hiring other foreign workers.
Labor Condition Application and Notice
After having established the prevailing wage, the employer must file the Labor Condition Application (LCA) with the U.S. Department of Labor.  A copy of the LCA (or the information contained therein) must be conspicuously posted at the place of employment.
The LCA contains certifications by the employer, subject to perjury, that the worker will be paid the appropriate wage, that the employment of the worker will have no adverse effect on working conditions, that there is not a lockout or work stoppage, and that notice has been provided as required.
Recordkeeping Requirements
The employer is required to keep, for specified periods of time, documentation concerning the determination of the actual wage, the prevailing wage, compliance with the notice requirement, the actual wage rates of similar employees, and the filing of the LCA. In certain circumstances, some of this documentation may be required to be made available to public disclosure on twenty-four hours prior notice. It must also be made available upon request by the US Department of Labor. There are specific provisions for the types of documentation to be maintained, the period over which it must be maintained, and the location at which the documentation must be maintained.
Application for H-1B Specialty Worker Status
After the LCA is approved by the Department of Labor, a petition may be filed with the US Citizenship and Immigration Services (US CIS) to classify an individual as an H-1B specialty worker. The petition must be supported by documentation evidencing that the individual will be working in a specialty occupation and that the job requires such a worker. The H-1B petition also must be accompanied by the LCA. The US CIS generally requires three to five months to process an H-1B visa petition.  H-1B visas may be filed with Premium Processing, pursuant to which the US CIS will process the application within 15 calendar days, with payment of an additional filing fee of $1225.