The H-1B visa is used by a foreign national who will be employed temporarily in a specialty occupation or as a fashion model of distinguished merit and ability.
Is there a limit on the number of H-1B aliens?
Yes. Under current law, there is an annual limit of 65,000 aliens who may be provided H1B status or issued a visa. Under the L1 Visa and H1B Visa Reform Act of 2004, beginning March 8, 2005, up to 20,000 additional H-1B slots were available to graduates of U.S. master’s degree (or higher) programs. There are some types of jobs that are exempt from the H-1B cap. In April 2007, the H1B cap was reached in one day.
How does one apply?
In an H-1B visa application, the U.S. employer is called the petitioner and the foreign worker is called the beneficiary. After an offer of employment is made, the petition process begins. If you are not cap exempt (for instance a J1 Conrad 30 physician) then you must apply for a H1B visa on April 1 for an October 1 start date.
The first step is for the petitioner to ensure that the worker will be paid 100% of the prevailing wage paid to similarly employed workers in the geographic area where the beneficiary will be employed. The employer must also be sure not to pay the worker less than the actual wage paid to other employees with similar qualifications.
The prevailing wage can be determined through a private wage survey or through a state Employment Security Agency (ESA). The benefit of relying on a state wage determination is that it cannot be challenged later by the U.S. Department of Labor (DOL). On the other hand, state determinations are not generally a close match to the job performed and are slow in being issued.
Once the wage information has been obtained, a Labor Condition Application (LCA) must be submitted to the DOL. On this form, the employer must submit the prevailing wage, the wage to be paid, and must make certain attestations. We usually submit this form on behalf of employers via the Internet, and the DOL only reviews the form to make sure it is properly completed. It does not look to see whether the information is accurate and instead investigates a small percentage of cases in which violations of the regulations appear to be occurring. (For more information, see the DOL’s Foreign Labor Certification web page at http://atlas.doleta.gov/foreign).
The certified LCA petition is submitted to the U.S. Citizenship and Immigration Services (USCIS) as part of the H1B petition package. Other information that should be included in the petition includes documentation of the foreign national, the petitioner’s type of business and the type of work the beneficiary will be performing.
What are the fees associated with the H-1B visa?
The following government-filing fees apply in H-1B cases:
- The base filing fee for an H1B case applies in every case. Presently, the fee is $325.
- In late 2004, Congress passed legislation restoring a worker-retraining fee. The previously applicable worker-retraining fee was reinstated and increased to $1500. Employers with fewer than 25 full-time equivalent employees in the U.S. (including employees of affiliates and subsidiaries) pay $750. Previously exempt employers will continue to be exempt from the fee.
- Additionally, there is a $500 fraud prevention and detection fee.
Immigration filing fees change frequently. You should contact an immigration attorney prior to filing an H1B visa to ensure that you are in compliance with the most recent regulations and filing fee requirements.