TEMPORARY WORKERS IN A SPECIALTY OCCUPATION
The H-1B visa category is often the only non-immigrant visa category available for a U.S. company to use to employ a foreign worker. As the title implies, the company must be seeking to fill a "specialty occupation" with a qualified alien. A specialty occupation is one which generally requires the possession of a baccalaureate degree or higher or its equivalent, as a minimum, entry level credential. A qualified alien is one who possesses the minimum credentials necessary to practice the specialty occupation, i.e., the appropriate academic degree.
Examples of categories of professionals which may qualify for H-1B status are engineers, chemists, accountants, computer systems analysts, and some marketing specialists.
To receive approval to enter the U.S. in H-1B status, a U.S. company must file a petition with the INS in the United States to demonstrate that the position is a specialty occupation and that the alien is qualified.
First, however, the employer must complete and file with the U.S. Department of Labor a "labor condition application." This is a seemingly simple form whereby the employer notifies the DOL that it intends to hire an H-1B alien at a stated wage. The employer commits itself to pay the alien at least the wage disclosed throughout the period of validity of the application.
This wage must be at least equal to the higher of either
Although the DOL can investigate the truthfulness of a labor condition application only upon receipt of a complaint, the penalties for a willful failure to comply can be severe.
Once the employer has received notice of receipt of the filing of a labor condition application from the DOL, it may file its petition for H-1B status for the alien. Once the INS approves the petition, the worker, his spouse and minor children must apply for H-1B and H-4 visas, respectively, at a U.S. Consulate or Embassy. (If they were already in the U.S., they may apply to "change status.") The spouse and children of the professional worker are not entitled to engage in employment in the U.S. while in H-4 status, but they may attend school.
H-1B visa is company-specific.
An H-1B is worker allowed to remain and work in the U.S. for a total of six years (commencing from the date he or she first acquired H-1 status) regardless of the number of employers.
Types of Visas