An employer can sponsor an employee for an H-1B visa to temporarily work in the United States in a specialty occupation. A specialty occupation is:
An occupation which requires theoretical and practical application of a body of highly specialized knowledge . . . including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.
The employee must have at least a Bachelor’s degree or the equivalent in a specific specialty. Examples of what is equivalent to a Bachelor’s degree could be that the degree requirement is common to the industry, the job is so complex or unique it can only be performed by somebody with a degree, the employer normally requires a degree, or the duties are specialized and complex. If the employee has a foreign degree, it must be evaluated by an educational credentialing organization that determines it to be at least equivalent to a U.S. Bachelor’s degree. Specialized training and progressive experience can be equivalent to a Bachelor’s degree.
Period of Stay
The initial period of stay is valid up to three years, depending on the dates chosen in the Labor Condition Application (LCA). The total period of H-1B status is six years, with one-year extensions available under the AC21 law for individuals in the process of obtaining a green card for permanent residence.
Labor Condition Application
The first step is to get a Labor Condition Application certified by the Department of Labor. In the LCA, the employer attests that there is no strike or lockout; the working conditions will not adversely affect U.S. workers; the employer will pay the greater of the prevailing or actual wages, notice of the filing of the LCA has been given to other employees or the bargaining representative; and if the employer is H-1B dependent, recruitment and non-displacement attestations may apply.
For the past several years, a cap and lottery system has been in place for awarding H-1B visas: 20,000 H-1B visas are available for foreign workers who have at least a master’s degree from a U.S. university, and 65,000 H-1B visas available for those without a U.S. Master’s degree. Of the 65,000 H-1B visas, 6,800 are reserved for Chileans and Singaporeans (H-1B1 visas).
As in the previous year, the U.S. Citizenship and Immigration Services (USCIS) will accept H-1B petitions during the first five days of April (April 1-5) and conduct a random lottery. In fiscal year 2016, USCIS received approximately 233,000 petitions that are subject to the cap, including petitions from those with master’s degrees or higher, which means a one-in-three chance of being selected.
Some H-1Bs are not subject to the cap. If the petitioner is an institution of higher education, a nonprofit associated with an institution of higher education, a nonprofit research organization or a government research organization, the petition is not subject to the lottery process.
Work Permits for H-4 Spouses
H-4 spouses now have the right to work in specific situations. If the H-1B spouse has an approved Form I-140, Immigrant Petition for Alien Worker (one of the steps in the green card process), or, has been granted an extension under the law AC21, the H-4 spouse can apply for an Employment Authorization Document (EAD) to have permission to work.
$460: fee for Form I-129
$750/$1,500: American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee (depends on number of people employed by employer)
$500: Fraud prevention and detection fee
$2,000: Public Law 111-230 fee
$1,225: Premium processing service fee
- Form G-28: Notice of Entry of Appearance as Attorney or Accredited Representative
- Form I-907: Premium Processing Service
- Form I-129: Petition for a Nonimmigrant Worker
- H Classification Supplement to Form I-129
- H-1B Data Collection and Filing Fee Exemption Supplement
- Certified Labor Condition Application (LCA)
- Initial petition: up to 3 years
- Extensions and subsequent petitions: total of 6 years
- Further extensions: 1 year at a time with AC21
OK to simultaneously seek permanent residence (green card)