H-1B Specialty Occupation Workers

The H -1B immigration classification allows foreign persons who hold a bachelor’s degree or the equivalent to work in the United States in professional-level jobs.  Both the employee and the employer must meet, and comply with, regulatory requirements.  These H-1B visa requirements include:

  1. The prospective foreign workers must possess a bachelor’s degree, or a foreign equivalent, or experience that equates to a degree.
  2. The position must require a bachelor’s degree.
  3. The employer must be willing to pay the foreign worker the higher of the actual or the prevailing wage for the position.
  4. Since release of technical data to a foreign worker is deemed an export, the employer must certify that an export license is either not necessary or obtain the required license before employing the foreign worker.

H-1B specialty occupation workers are typically initially approved for three years, which may be extended for an additional three years.  H-1B workers may apply for permanent resident status while maintaining H-1B status, if they wish.

Dependents of H-1B workers may be admitted as H-4 non-immigrants.  As H-4’s, they may not work in the United States.

Because of the annual cap on H-1B’s, the timing of filing the H-1B petition and the foreign worker’s availability for employment must be carefully considered.

To apply for H-1B status or an H-1B visa, the petitioner, a United States employer, must submit to USCIS an I-129 Petition for Nonimmigrant Worker, the “H” Supplement form, a letter of support and the prospective worker’s credentials.  The employer must also submit a certified Labor Condition Application, which requires the employer to make certain attestations regarding the anticipated H-1B employment.  Most importantly, the employer must attest that it will pay the foreign worker either the prevailing wage or the actual wage, whichever is higher.  If the H-1B worker is terminated by the employer prior to the stated term of employment, the employer must pay the cost of transporting the H-1B worker back to his home country.

Filing fees should generally be paid by the employer.  They will include the basic fee for the petition, along with possible additional fees, depending on the circumstances.

Contact a professional immigration attorney about H1B Specialty Occupation Workers Visas.