H VISA CATEGORY
The H-1B1 Visa
H-1B1 "specialty occupation"
visa category is one of the most common employment-based nonimmigrant
petitions for foreign nationals who wish to work in the U.S. for a period
of up to six years. H-1B1 workers do not need to maintain a foreign
residence during their period of stay in the United States, a requirement
imposed on many other nonimmigrant categories.
A "Specialty Occupation" is an
occupation which requires theoretical and practical application of a body
of highly specialized knowledge to perform fully the occupation, and which
requires a Bachelor's or higher degree as a minimum requirement to perform
the job duties. It is very important that the degree requirement is common
to the industry for similar positions and the employer normally requires
the degree for the type of job being offered.
In order for employers to hire H-1B1 workers,
they must first prepare and execute two originals of the Labor Condition
Application (LCA), Form ETA-9035, attesting to the following:
- The H-1B worker will be paid the "required
wage rate" for the occupation, which is the higher of the prevailing
wage for the occupation in the area of intended employment or the actual
wage paid to similar employees of the employer in the same occupation at
the work site.
- The employment of the H-1B worker will not
adversely affect the working conditions of other similarly employed
- There is no strike, lockout, or work
stoppage in the course of a labor dispute affecting the employer's
employees in the occupation at the work site.
- A notice of the LCA filing has been
provided to other workers at the location. Notice may be accomplished by
posting a copy of the LCA or a written summary with specific information
about the LCA in two conspicuous locations at the work site for ten
consecutive business days.
The original LCA must be filed with the
Department of Labor (DOL). It usually takes between three to seven working
day for the DOL to certify the LCA. Once certified, the petition can then
be filed with the INS.
The INS petition is filed on Form I-129 with
the INS Service Center with jurisdiction over the work site. The INS
petition must be accompanied by documentation that the job to be filled by
the H-1B worker is a "specialty occupation," including evidence that the
H-1B1 worker has the necessary credentials to qualify for a specialty
occupation. If the worker has a foreign degree, that degree must be
evaluated by a recognized degree evaluation service. If the worker is
lacking the degree usually required to enter the occupation, his or her
education and experience must be evaluated to determine whether his or her
overall credentials are the equivalent of the usually required degree.
Credentials evaluations are required in cases in which the normal
university degree is lacking.
The INS Service Center normally takes about
two to four months to adjudicate the H-1B petition. Only after the
petition is approved may the H-1B worker take the approval notice to a
U.S. consulate to obtain an H-1B visa to enter the United States. If the
petition has indicated that the H-1B worker is already in the United
States in valid H-1B1 status, the worker may commence employment for the
employer once the H-1B petition is filed (our office recommends to our
clients to wait until our office receives the receipt notice from the
INS). Approval of an initial H-1B petition may be given for up to three
years, and extensions of stay may be granted to a maximum period of stay
of six years.
The employer has several continuing
obligations once the petition has been approved. For example, if the H-1B
worker is assigned to work sites not listed on the original LCA,
additional steps must be taken. These steps must include a new posting at
the additional work site or the filing of a new LCA (with a new prevailing
wage determination, actual wage calculation, and posting), depending on
whether the new work sites are within an area of employment listed on the
original LCA. If there are any changes in the employment described, then a
H-1B petition must be approved by the INS through the filing of an amended
petition. The INS interprets assignment to additional work sites requiring
a new LCA to be material change requiring the filing of an amended
The employer also has an obligation to
produce its LCA documentation to any requester (the public inspection
file) or to the DOL (all documentation). The DOL may investigate the
employer's LCA based either on a complaint from an "aggrieved" party or on
its own initiative. A DOL finding that the employer has violated the LCA
requirements, such as through "willful" failure to pay the required wage
rate or "substantial" failure to post a notice of the LCA filing, could
result in penalties, payment of back wages, and being barred from filing
LCAs or permanent labor certifications, or obtaining approval of H, L, O,
and P non-immigrant or employment-based immigrant petitions for at least
Finally, the employer has an obligation to
pay the costs of return transportation for any H-1B worker whose period of
employment is terminated prior to the expiration date of the worker's
status. The INS expects the employer to meet this obligation, although it
does not directly verify compliance.
The H-2 Visa for
Temporary and Seasonal Workers
An international beneficiary who is offered a job by a U.S.
employer may enter the U.S. for a temporary time of specified duration to
fill the offered position. The employment must be a one-time need based
upon low U.S. worker availability, seasonal, or cyclical needs.
prove to the satisfaction of the United States Consul official
COMPANY IS OFFERING EMPLOYMENT - The employer must be offering a
position that is temporary and based on unusual need;
OF EMPLOYMENT MUST HAVE SPECIFIC ENDING DATE - The offered position
must be an isolated occurrence that has a specific foreseen ending date.
The position may not be a consistently vacant position, but the need for
the Beneficiary must arise due to seasonal, cyclical, or tight labor
- TEMPORARY LABOR CERTIFICATION - The Petitioner must obtain
a temporary labor certification certifying that no U.S. workers will be
adversely affected by the employment of the international Beneficiary.
Further, the Beneficiary must be paid a wage equal to or exceeding a
minimum prevailing wage for workers in the same position set by the
state where Beneficiary shall work.
temporary Labor Certification from U.S. Department of Labor certifying
that no U.S. workers are available to fill the offered position, and
that no U.S. workers will be adversely affected by the employment of the
- Proof that
job offered is for a short specified duration with date certain for
- Proof that
beneficiary has the job qualifications necessary to fill the offered
position, that is, training, education, or letters of
- Job offer
letter describing position, temporary need of employee, and terms and
conditions of employment.
Once approved, an
H-2B Visa is good for the length of the TLC for a maximum of one year.
Renewals for an H-2B visa may be extended for a maximum of three years in
one-year increments. Upon reaching completion of the maximum stay a
Beneficiary must depart the U.S. for at least six months.
The H-3 Visa
Category for Trainees
The H-3 visa is for an
alien coming to the United States to receive training from an employer in
any field other than graduate education or training. This covers a
specific course of job-related training that has been planned in the
United States which may include employment incidental to the training
When an application is made in this category,
the employer must state that the training is not available in foreign
nationals, and why it is necessary for the alien to take training in the
Visitors" may also apply for nonimmigrant visas under the H-3
category. A "Special Exchange Visitor" is one who seek to enter the U.S.
to gain practical training in educating children with physical, mental, or
emotional disabilities. The alien must have a foreign residence they have
no intention of abandoning, and they may stay in the U.S. for up to
eighteen months. Only 50 aliens per year may enter the U.S. in the Special
Exchange Visitor category.
that is required to be filed with the I-129 petition varies depending on
the H-3 sub-category in which the alien is seeking to obtain
For those individuals seeking to obtain
training in a special education training program, the petition must be
filed with the following documentation:
1. A description of the training, staff, and facilities;
2. Evidence that the program provides special
education to children with physical, mental, or emotional disabilities,
and that any custodial care of the children is only incidental to the
3. Details of the alien’s participation in
4. Documentation that the alien is nearing
the completion of a baccalaureate degree in special education, already
holds such a degree, or has extensive experience in teaching children with
physical, mental, or emotional disabilities.
For those individuals seeking to obtain
training from an employer in any other field (other than graduate
education or training), the petition must be filed with the following
1. A detailed
description of the structured training program, including the number of
classroom hours per week, and the number of hours of on-the-job training
2. A summary of the prior training and
experience of the alien; and
3. An explanation of why the training is
required, whether similar training is available in the alien’s country,
how the training will benefit the alien in pursuing a career abroad, and
why the employer is willing to incur the cost of providing the training
without significant productive labor.
An H-3 visa for an alien
trainee may be valid for a period of up to two years.
An H-3 visa for an alien participant in a
special education training program may be valid for up to 18
If H-3 visa holder has remained in the U.S.
for the maximum period of time, as stated above, he/she may not seek a
change of status, extension, or readmission to the U.S. in H or L status
until he/she has resided outside of the U.S. for a period of six
Status of Spouse
and Minor Children
A spouse or unmarried child of an H-3 visa
holder is entitled to an H-4 visa, and the same length of stay as the
principal. The spouse and dependent minor children cannot accept
employment, but can attend school in the United States.