Employing Foreign Workers: H-1B Visas

Jonathan Sparks | September 24th, 2018

The best candidate for a position in a company is not always an American. Hiring a foreign worker may be the best for business, but the process can be intimidating. This post gives a brief overview of the requirements for H-1B visas, which allow foreigners to work in specialty occupations in the United States. Technically, these workers are not immigrants because the H-1B visas are temporary, they are therefore referred to as “H-1B nonimmigrants.”

There are three types of H-1B visas. The H-1B is by far the most common, and is given to nonimmigrants who wish to work in a “specialty occupation,” which can include biotechnology, chemistry, architecture, medicine, engineering, and law, among many others. To qualify as a specialty occupation, a job must have at least one of the following characteristics:

  • Require a bachelor’s or higher degree or its equivalent.
  • The degree requirement must be common to the industry and the job must be so complex or unique that it can only be performed by someone with a degree.
  • The employer normally requires a degree or its equivalent for the position.
  • The job’s duties are so specialized and complex that performing them is usually associated with earning a degree.

To qualify for the visa, the nonimmigrant accepting the job must hold a higher degree, have a license or certification, or have education and/or experience in the job that is equivalent to a degree.

H-1B2 visas are reserved for Department of Defense researchers and development project workers, and the requirements are similar to those for the H-1B. H-1B3 visas go to fashion models “of distinguished merit and ability.” For H-1B3 visa, the job must require a fashion model of prominence.

Employers must sponsor nonimmigrants who wish to work on an H-1B visa. Applying is a three-step process. First, the employer must submit Form ETA-9035, Labor Condition Application (“LCA”), to the Department of Labor (“DOL”). For an H-1B2 worker, the LCA requirement is waived. After the DOL certifies the LCA, the Employer submits Form I-129, Petition for Nonimmigrant Worker, to the United States Citizenship and Immigration Services. Once that is approved, the nonimmigrant applies to the Department of State at an embassy or consulate for the visa. The spouse and unmarried children of H-1B nonimmigrants can generally apply for their own temporary visas.

Once granted, H-1B visas are valid for up to three (3) years. The visa may be extended, but generally not beyond a total of six (6) years. If an employer fires an H-1B nonimmigrant before his or her visa expires, the employer must pay the reasonable costs of his or her return transportation. H-1B holders may apply for Legal Permanent Residency in the United States, but it is not automatically granted.

H-1B visas are capped at 65,000 per fiscal year, but the first 20,000 petitions filed on behalf of nonimmigrants with a master’s degree or higher are exempt from the cap, as are nonimmigrants who wish to work at educational institutions or nonprofit entities. This creates a rush to apply each year, so it is vital that employers looking to retain a nonimmigrant begin the process early. It is best to seek legal counsel before beginning the various applications as they can be expensive, complicated, and time-consuming. Please contact Sparks Law, LLC to learn more.

Notice: This website consists of attorney advertising and opinions and does not establish any attorney-client relationship. Attorney-client relationships are only formed upon signing an engagement agreement. Sparks Law cannot guarantee results; past results do not guarantee future results.

Notice: This website consists of attorney advertising and opinions and does not establish any attorney-client relationship. Attorney-client relationships are only formed upon signing an engagement agreement. Sparks Law cannot guarantee results; past results do not guarantee future results.