General Information on H-1B Visa Status

Eligibility Criteria

  1. The employment must be in a "Specialty Occupation." A "Specialty Occupation" is one which requires theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation; and which requires completion of a specific course of education at an accredited college or university, culminating in a baccalaureate or higher degree in a specific occupational specialty, where attainment of such degree, or its equivalent, is the minimum requirement for entry into the occupation in this country.
  2. The applicant must have the specific degree required for the "Specialty Occupation."
  3. There must be an employer/employee relationship, meaning there must be some form of payment. The job does not have to be full-time. One can simultaneously hold more than one H-1B approvals for more than one job.
  4. The employer must have documentation available that the wage for the position is the prevailing wage for that position in the given geographic area. A wage determination that comes directly from the Wage and Hour Division of the local Department of Labor gives the employer the maximum legal security
  5. The employer must have documentation available that the wage being paid is the actual (average) wage for other employees within the company in the same position with similar qualifications.
  6. The H-1B carries a legal clause providing for the possibility of "dual intent," meaning that the status is that of a non-immigrant but the applicant does not have to prove that s/he does not intend to immigrate in order to be granted a visa.

Labor Condition Application (LCA) Requirement

  1. USCIS will not act on any H-1B petition until it receives an approved LCA (Form ETA 9035).
  2. The LCA must be submitted online at: http://ows.doleta.gov/
  3. The LCA verifies that the salary offered is equal to, or greater than, the prevailing wage for that occupation in the relevant geographic area.
  4. An LCA cannot be submitted to the DOL until a description of the position, including title, department, dates of hiring, and salary, is posted in two prominent locations where workers with the same type of position will see the notice. This posting merely indicates that a position will be filled by a non-immigrant worker.
  5. The employer must pay the actual wage for the position, rather than the prevailing wage, if the actual wage is higher. The actual wage is the average salary of other qualified workers in the same position with the given employer.
  6. If a complaint is filed with the Wage and Hour Division of the Department of Labor, the employer must be able to produce evidence within 24 hours that the prevailing wage requirements have been met. Evidence must be in the form of an official prevailing wage determination from the State Employment Services Agency (SESA) or an independent survey, covering the specific geographic area of employment.

Summary of Documents Submitted by the Employer

  1. The H-1B petition (forms I-129 and I-129w). All forms and fees can be found at the USCIS website at: http://www.immigration.gov/graphics/formsfee/forms/index.htm
  2. An approved Labor Condition Application (form ETA 9035), printed from the website where it is submitted.
  3. A statement that the employer will comply with the terms of the Labor Condition Application.
  4. Evidence that the alien qualifies to perform services in the specialty occupation.
  5. School records, diplomas, degrees, affidavits, contracts, and similar documentation, reflecting periods of attendance, courses of study, and similar pertinent data, must be submitted to USCIS; they must be executed by the person in charge of the records of the institution, firm, or establishment. If degrees are received in a foreign country, there must be an official transcript evaluation by a reputable agency.
  6. Copies of any written contracts between the petitioner [employer] and the beneficiary [alien], or a summary of the terms of the oral agreement under which the beneficiary will be employed, must be submitted to USCIS.
  7. A statement signed by an authorized official of the employer that the employer will be liable for reasonable costs of return transportation home for the alien, if the alien is dismissed from employment by the employer before the end of the period of authorized stay in the U.S.
  8. A check or money order for the application fee, as listed on the USCIS forms website. You must print and complete form I-129 and form I-129W. As of summer, 2003, it takes about 6-8 months to get an H approved by normal processing. For premium processing (a 15-day processing time), print and complete form I-907. An additional fee of $1000 is required. Fees are listed at: http://www.immigration.gov/graphics/formsfee/forms/index.htm
  9. Note: Employers who are not universities or non-profit organizations must pay an additional $1000 fee in addition to fees for other forms for each H-1B worker and may be subject to a quota system.

Special Issues

  1. The alien may not begin employment as an H-1B until the approval notice (I-797) is received from the USCIS. Employment which begins before the approval date will be viewed as unauthorized employment by USCIS. It is permissible to continue working in one's prior status while the H-1B application is pending, as long as the prior status remains valid. This applies only to the first H-1B approval.
  2. The H-1B is employer-specific. An alien in this status may work only for the employer who obtained approval of an H-1B petition for the alien. No other work is permitted. A second employer who wishes to employ the alien concurrent with the job specified in an H-1B petition may file a separate, concurrent petition and employ the alien upon receipt of an approval notice.

Miscellaneous Information

  1. Spouses and children under 21 can apply for H-4 status as dependents. To do this, a separate form I-539 is completed by the spouse, listing any children, and attached to the H-1B petition with proof of legal status and a fee to USCIS. Aliens in H-4 status cannot work but may attend classes.
  2. An H-1B petition (I-129) must be filed for a specific period of time, citing both starting and ending dates. The initial period may not exceed three years. Subsequent periods of extension may be requested for up to three years, providing the overall limit of 6 years has not been exceeded.
  3. The maximum period of time in which an alien may remain in H-1B status, regardless of how many different jobs may have been involved, is six years. If the alien remains outside the U.S. for one full year after using up the six-year allotment, s/he can begin work in H-1B status again. As of 4/2001, an alien with an I-485 petition (application for permanent residence) pending with USCIS for at least 365 days prior to the expiration of the 6th year of H-1B status may apply for an extension of H-1B status until the permanent residence is approved.
  4. As of 4/2001, an H-1B visa holder may move to a new employer after receiving a receipt notice from USCIS for filing an H-1B petition for a new employer. However, if an H-1B is laid off, there is no grace period in which to depart the US. The H-1B employee's stay is terminated immediately.
  5. An H-1B status will not "lead" to permanent residence. Both the position and the employee must meet qualifications for applying for employment-based permanent residence, and not all positions and employees that qualify for H-1B also qualify for permanent residence.
  6. There is no quota on the number of H-1B visas that will be granted each year for work at universities. However, there is a quota is in effect on the number of H-1B's that can be granted each year for private companies. The fiscal year is October 1- September 30th.