Frequently Asked Questions of H-1B Visa

Employers hiring foreign nationals in specialty occupations, or as fashion models of distinguished merit and ability, must apply for the H-1B visa on the employee's behalf.

No. H-1B status requires a sponsoring U.S. employer, so an individual cannot obtain it alone.

“Specialty occupation“ means “an occupation that requires

1. theoretical and practical applicatiofn of a body of highly specialized knowledge, and
2. attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

USCIS weighs these factors most heavily:

1. a degree at the bachelor's level or higher in a specific field is required for entry;
2. the industry generally accepts that degree requirement for parallel positions at similar companies;
3. if the industry does not, the employer may show that the position is so complex or unique that a degree is necessary;
4. the employer normally requires a degree for the position (other employees in parallel positions hold degrees, or previous holders of the position did);
5. the duties are complex enough that they are usually associated with holding a degree; and
6. the position's level of responsibility and authority is usually associated with professional standing.

USCIS increasingly considers company size in deciding whether a position qualifies as a specialty occupation. Given that trend, a small employer must show a particularly strong need for a specialty occupation worker, for example by documenting a prestigious client list or concrete plans to attract such clients.

Under USCIS rules, a foreign worker is qualified to perform services in a specialty occupation if he/she:

1. holds a U.S. bachelor's or higher degree from an accredited college or university, as required to enter the specialty occupation;
2. holds a foreign degree found equivalent to the U.S. bachelor's or higher degree required for the specialty occupation;
3. holds an unrestricted state license, registration, or certification to practice the occupation fully and begin work immediately in the state of intended employment; or
4. has education, specialized training, and experience equivalent to that gained through a U.S. bachelor's or higher degree in the field.

Yes. The immigration rules require a foreign worker to be able to perform the duties of his/her specialty occupation immediately, including any applicable state licensing requirement. In a licensed field, a permanent license is normally required for H-1B status, but some states allow a professional to practice fully under a temporary license, which USCIS accepts.

Before filing a petition with USCIS to classify the foreign worker in a specialty occupation for H-1B purposes, the employer must first file a labor condition application with the DOL containing several required attestations. Once the Department of Labor certifies the LCA, the employer applies to U.S. Citizenship and Immigration Services (USCIS) for approval to employ the worker in H-1B status.

An employer must do two things before filing an LCA:

1. First, the employer takes preliminary steps before filing with the DOL. It must determine the prevailing wage for the position by one of the following methods:
   • Requesting a prevailing wage determination from the National Prevailing Wage and Helpdesk Center (NPWHC) (on or after January 1, 2010).
   • Using a rate set in a collective bargaining agreement;
   • Using a determination issued under the Davis-Bacon Act (DBA) for the occupation and area;
   • Using a determination issued under the McNamara- O'Hara Service Contract Act (SCA) for the occupation and area;
   • Using a survey from an independent authoritative source; or
   • Using another legitimate source, such as the OFLC Online Data Center.
   DOL rules state that “the employer is not required to use any specific methodology to determine the prevailing wage.“ The rules add, however, that if a collective bargaining agreement between a union and the employer contains a wage rate for the occupation, that rate is the prevailing wage.
2. The employer must also notify U.S. workers of its intent to hire a foreign worker by posting the completed LCA, Form ETA 9035E, for the position, within the 30 days before the labor condition application is submitted to the DOL. Notice may be hard copy or electronic. The hard copy must go to the bargaining representative for workers in the occupation or, if there is none, be posted for 10 consecutive days in at least two conspicuous locations at each place of employment where an H-1B, H-1B1, or E-3 nonimmigrant will work. Electronic notice may be given by whatever means the employer normally uses to communicate with employees (e.g., e-mail, bulletin board, and home web page). The employer must also give a copy of the LCA to each nonimmigrant worker employed under it.

A prevailing wage determination is valid for filing for ninety days to one year after the National Prevailing Wage and Helpdesk Center (NPWHC) issues it. The employer must file its LCA within the validity period shown on the form. It may request a redetermination with supplemental documentation, such as an alternative wage source, or ask the NPWHC director to review the determination.

Yes. An employer may request review of a PWD (or a redetermination) within ten days of issuance, and may ask BALCA to review the NPWHC's decision within thirty calendar days of the decision.

Yes. Under current DOL policy, an employer that disagrees with the NPWHC determination may disregard it entirely and use one of the other methods to establish the prevailing wage.

DOL rules define an independent authoritative source as a “professional, business, trade, educational, or governmental association, organization, or other similar entity“ with recognized expertise in an occupational field.

Use of an independent authoritative source must also meet the criteria in the LCA rules and the November 2009 prevailing wage guidance. If DOL investigates, the employer must justify the alternative wage source under those standards.

No. There is no poster requirement.

Yes. The employer must notify U.S. workers of its intent to hire a foreign worker by giving notice of the LCA filing to the bargaining representative, if there is one, or, if there is none, by posting notice of the filing in two conspicuous locations at the employer's establishments or by providing electronic notice. Notice must be given on or within the 30 days before the labor condition application is submitted to DOL.

Notice may be given in one of two ways: hard copy or electronic. The hard copy goes to the bargaining representative for workers in the occupation or, if there is none, is posted for 10 consecutive days in at least two conspicuous locations at each place where a nonimmigrant will be employed. Notice may also be provided through whatever electronic means the employer normally uses to communicate with employees (e.g., e-mail, bulletin board, and home Web page).

To obtain H-1B status approval, the employer must first file a Labor Condition Application (LCA) with the Department of Labor, using Form ETA 9035 or Form ETA 9035E. The employer must attest that it will:

1. Pay nonimmigrant workers at least the higher of the local prevailing wage or the employer's actual wage; pay for non-productive time in certain circumstances; and offer benefits on the same basis as for U.S. workers;
2. Provide H-1B workers with working conditions that will not adversely affect the working conditions of similarly employed workers;
3. Not employ an H-1B worker at a location where a strike or lockout in the occupational classification is under way, and notify ETA of any future strike or lockout; and
4. On or within 30 days before filing the LCA with ETA, give notice of the employer's intent to hire H-1B workers. The employer must provide this notice to the bargaining representative of workers in the occupation in which the H-1B worker will be employed. If there is no bargaining representative, the employer must post the notice in conspicuous locations at the intended place(s) of employment or provide it electronically.

LCAs must be filed electronically through the Department's iCERT Portal System, available at: http://iCERT.doleta.gov. The only two exceptions to electronic filing are physical disability and lack of Internet access.

An employer that submits an LCA through the iCERT Portal System can expect a response within seven working days unless the application contains obvious inaccuracies.

The H-1B certification is valid for the period of employment stated on the Labor Condition Application (LCA), Form ETA 9035E, for up to three years.

A foreign worker may hold H-1B status for a maximum continuous period of six years unless USCIS grants an extension. After the H-1B expires, the worker must remain outside the U.S. for one year before USCIS can approve another petition. Certain workers with labor certification applications or immigrant visa petitions pending for extended periods may stay beyond the six-year limit, in one-year increments.

The number of new visas issued each year is capped. H-1B visas are capped at 65,000 per fiscal year, and an additional 20,000 are available to individuals who earned a master's degree or higher from a U.S. institution of higher education.

The employer must pay the worker at least the higher of the wage rate paid to other employees with similar experience and qualifications or the local prevailing wage for the occupation in the area of employment. The prevailing wage is the average rate paid to workers similarly employed in the area of intended employment. “Similarly employed“ means workers in substantially comparable jobs in the occupational classification in the area of intended employment.

Yes. The spouse or unmarried child of a person in H-1B status may obtain an H-4 visa. H-4 visa holders cannot work in the United States but may attend school.

The employer must pay the worker at least the higher of the wage rate paid to other employees with similar experience and qualifications or the local prevailing wage for the occupation in the area of employment. The actual wage is the rate paid to other individuals “with similar experience and qualifications for the specific employment in question.“ DOL (U.S. Department of Labor) rules list the factors that determine “similar experience and qualifications“: experience, qualifications, education, job responsibility and function, specialized knowledge, and “other legitimate business factors“ such as professional distinctions, or receipt of international prizes.

An H-1B dependent employer is generally one whose H-1B workers make up 15 percent or more of its total workforce; different thresholds apply to smaller employers. An H-1B dependent employer may be exempt from these additional rules if it hires only H-1B workers who are paid at least $60,000 per year or hold a master's degree or higher in a specialty related to the employment.

H-1B dependent employers and willful violators must attest to the following three elements on non-displacement and recruitment of U.S. workers:

1. The employer will not displace a similarly employed U.S. worker within 90 days before or after it applies for H-1B status or an extension of status for any H-1B worker;
2. The employer will not place an H-1B worker employed under the LCA at another employer's worksite unless it first makes a bona fide inquiry into whether that employer has displaced or intends to displace a similarly employed U.S. worker within 90 days before or after the placement; and
3. Before applying for H-1B status for any foreign worker under an H-1B LCA, the employer took good faith steps to recruit U.S. workers for the job at wages at least equal to those offered to the H-1B worker, and it will offer the job to any U.S. worker who applies and is equally or better qualified. This attestation does not apply if the H-1B worker is a “priority worker“

Under the American Recovery and Reinvestment Act of 2009, recipients of federal funds under Chapter 13 of the Federal Reserve Act or the Troubled Asset Relief Program of the Emergency Economic Stabilization Act of 2008 that want to hire H-1B workers must make the same attestations required of an H-1B dependent employer, listed above.

Every employer seeking an H-1B, H-1B1, or E-3 nonimmigrant has several responsibilities:

1. The employer must submit a completed Labor Condition Application (LCA) on Form ETA 9035E or Form ETA 9035 (if special permission is granted) as the regulations prescribe. By signing the LCA, the employer agrees to attestations about its responsibilities, including the wages, benefits, and working conditions provided to U.S. workers and nonimmigrant workers.
2. The employer must make the LCA and necessary supporting documentation available for public examination at its principal place of business in the U.S. and/or the place of employment within one working day after filing the LCA with ETA.
3. The employer may submit a copy of the approved LCA to U.S. Citizenship and Immigration Services (USCIS) with a completed petition (USCIS Form I-129) requesting H-1B or H-1B1 classification. For the E-3 visa, a petition to USCIS may not be required; instead, foreign workers: (1) may apply for approval directly at a U.S. consulate; (2) pay a visa fee; and (3) receive an I-94 entry/exit document at the port of entry that serves as their work authorization.
4. The employer must not let the nonimmigrant worker begin work until USCIS authorizes the worker to work in the U.S. for that employer or, if the worker already holds H-1B status and is changing jobs, for the new employer, which must first file a petition supported by a certified LCA.
5. The employer must keep documentation sufficient to meet its burden of proof on the validity of the statements in its LCA and the accuracy of the information provided if either is challenged. The employer must keep this documentation at its principal place of business in the U.S. and make it available to DOL for inspection and copying on request.

H-1B regulations require a United States employer to establish an employer-employee relationship with the beneficiary, shown by its authority to hire, pay, fire, supervise, or otherwise control the employee's work. The petitioner must also meet all other H-1B petition requirements, including:

1. showing that the beneficiary is coming to the United States temporarily to work in a specialty occupation;
2. demonstrating that the beneficiary is qualified to perform services in that specialty occupation; and
3. filing a Labor Condition Application (LCA) for each location where the beneficiary will perform services.

USCIS evaluates whether the petitioner has the “right to control“ the beneficiary's employment, including when, where, and how the job is performed. Factors include how much the petitioner actually supervises the beneficiary; the petitioner's right to control the beneficiary's daily work and work product; and the right to hire, pay, and fire the beneficiary. Adjudicators review the totality of the circumstances in deciding whether an employer-employee relationship exists.

Petitioners must provide detailed documentation of the employment relationship. Especially when the beneficiary will be assigned to third-party (client) worksites, the employer must document carefully that it, not the client, has the right to supervise, direct, and review the foreign national's work and to terminate his or her employment. The petitioner must also attach a detailed itinerary covering the work locations.

The documents listed in the memorandum are only examples of evidence that establishes the petitioner's right to control the beneficiary's employment. Unless the regulations require a specific document, such as an itinerary, a petitioner may submit similarly probative documents, including any combination that sufficiently establishes the required relationship. The petitioner should explain how those documents establish it. Adjudicators will weigh all the evidence submitted to decide whether a qualifying employer-employee relationship exists.

H-1B workers receive the following protections:

1. The employer must provide the worker with a copy of the LCA.
2. The employer must pay the worker at least the higher of the wage rate paid to other employees with similar experience and qualifications or the local prevailing wage for the occupation in the area of employment.
3. The employer must pay for non-productive time that the employer causes or that results from the worker's lack of a license or permit.
4. The employer must offer the worker fringe benefits on the same terms as its other employees.
5. The employer may not require the worker to pay a penalty for leaving before an agreed date. This restriction does not bar the employer from seeking “liquidated damages“ under relevant state law. Liquidated damages are generally contractual estimates of the damages the employer anticipates from the worker's breach of contract.

An H-1B worker who loses a job must find another employer to petition on his or her behalf, change to another immigration status, or return home.

Generally not. An H-1B alien may be the beneficiary of a labor certification application, an immigrant visa petition, or an adjustment of status application, or take other steps toward lawful permanent residence, without affecting H-1B status. U.S. immigration law permits dual intent for H-1B holders, meaning a person may remain in nonimmigrant H-1B status while intending to become a permanent resident. While the permanent residency application is pending, you may continue to travel and work in H-1B status.