© 2016 by Williams Global Law, PLLC

The H-1B is a non-immigrant visa which allows U.S. employers to temporarily employforeign workers in specialty occupations.

 

This visa category applies to people who wish to perform services in a specialty occupation, services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project, or services as a fashion model of distinguished merit or ability.

 

Labor Condition Application (LCA)

 

Prospective specialty occupation and distinguished fashion model employers must obtain a certification of an LCA from the Department of Labor (DOL). This application includes certain attestations, a violation of which can result in fines, bars on sponsoring nonimmigrant or immigrant petitions, and other sanctions to the employer.

The application requires the employer to attest that it will comply with the following labor requirements:

 

  • The employer will pay the beneficiary a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for your position in the geographic area in which you will be working.

  • The employer will provide working conditions that will not adversely affect other similarly employed workers. At the time of the labor condition application there is no strike or lockout at the employer place of business. Notice of the filing of the labor condition application with the DOL has been given to the union bargaining representative or has been posted at the place of business.

 

Period of Stay

 

An H-1B nonimmigrant may be admitted for an initial period of up to three years. The maximum H-1B period may be extended, but generally cannot go beyond a total of six years, though some exceptions do apply under sections 104(c) and 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21). The employee may be eligible for extension beyond six years if an application for labor certification or an immigrant visa petition was filed at least 365 days prior to reaching the 6-year H-1B max date OR obtain three-year extension beyond the 6-year H-1B max date if an I-140 is approved and the individual is from a country for which there is a backlog of immigrant visa availability.

 

H-1B Cap

 

The H-1B visa has an annual numerical limit “cap” of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities, a nonprofit research organization, or a government research organization are not subject to this numerical cap.

 

Family of H-1B Visa Holders

 

The spouse and unmarried children under 21 years of age may seek admission in the H-4 nonimmigrant classification. Family members in the H-4 nonimmigrant classification may not engage in employment in the United States.