What is an H-1B visa?





What is an H-1B visa?




The H1-B 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.

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Is there a limit on the number of H-1B visas?




Yes. Under current law, there is an annual limit of 65,000 aliens who may be provided H1-B Visa status or issued a visa. Under the L1 Visa and H1-B Visa Visa Reform Act of 2004, beginning March 8, 2005, up to 20,000 additional H1-B Visa slots were available to graduates of United States master’s degree (or higher) programs. There are, however, some petitions that would not be subject to the cap [e.g. a nonprofit research organization as defined in 8CFR 214.2(h)(19)(iii)(C)]


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How does one apply?




In an H1-B 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.

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, but is usually determined using the Foreign Labor Certification Data Center. The benefit of relying on this determination is that it cannot be challenged later by the United States Department of Labor.

Once the wage information has been obtained, a Labor Condition Application (LCA) must be submitted to the Department of Labor. 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 online, and the Department of Labor 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 Foreign Labor Certification Employment & Training Administration). The certified Labor Condition Application is then submitted to the USCIS as part of the H-1B 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.


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What are the fees associated with the H-1B visa?




The following government-filing fees apply in H1-B Visa cases:

  • The base filing fee for an H-1B case applies in every case. See H and L Filing Fees for Form I-129, Petition for a Nonimmigrant Worker
  • 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, and you should contact an immigration attorney prior to filing an H1-B Visa to ensure that you are in compliance with the most recent regulations and filing fee requirements


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What can an H-1B Visa visa can do for you?




The USCIS recognizes that there is a shortage of American workers available to fill specialty occupations at businesses and professional organizations in the United States.

H1-B Specialty Occupation Visas are available through the USCIS each year for those who are not subject to the fiscal year cap. Typically, the visas are granted for three years and may be extended for a maximum of 6 years. In addition, if the sponsoring employer is willing to continue sponsoring the specialty worker for residency status, the employee may apply for an employment-based green card to remain in the United States permanently.


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For more information about H1-B Visa transfers, extensions and compliance, please visit these related links:

Various specialty occupations

There are several occupations that are currently listed by the USCIS as specialty occupations, and additional occupations may be considered on a per-applicant basis. The list includes occupations such as:

  • Certain healthcare professionals
  • Accounting professionals
  • Computer analysts
  • Programmers
  • Database administrators
  • Engineers and scientists
  • Licensed professionals such as architects and lawyers

Eligibility for H1-B Visa Specialty Worker visa

  • Profession must be a “specialty occupation”
  • Petition must be submitted by the employer (there are some exceptions to this requirement)
  • Bachelor’s degree required or requisite experience
  • Employee must have a bachelor’s degree or United States equivalent or experience in the specialty occupation
  • The employer must pay the employee the prevailing wage
  • The employee meets state licensing requirements if such license is required

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