The H1B is a non-immigrant visa in the United States under the Immigration & Nationality Act, section 101(a)(15)(H). The H-1B nonimmigrant category is for foreign workers in "specialty occupations" and fashion models of "distinguished merit and ability." A "specialty occupation" is defined by the Immigration and Nationality Act (INA) as an occupation that requires:
The H-1B classification is available, for a period not to exceed a total of six years, to a foreign worker: Who will be the incumbent in a temporary position. ("Temporary" is defined as that which is not permanent; or, that which is for a definite term as opposed to an indefinite term);
Who will perform services in a specialty occupation. (Most professional jobs are classified as "specialty occupations"); and, On whose behalf the employer obtained an approved Labor Condition Application LCA. (A Labor Condition Application serves, amongst other things, to ensure that the employer is not paying less than prevailing wages).
Workers in this category may apply for permanent residency and do not need to maintain a foreign residence during their period of stay in the United States.
The annual H-1B cap is set at 65,000. The overall H-1B numbers are reduced by the U.S.-Chile and U.S.-Singapore Free Trade Agreements (FTAs), which set aside 6,800 H-1B numbers for workers from those two countries each fiscal year. Some unused FTA visas from a prior fiscal year may be recaptured and made available in the first six weeks of the following fiscal year.
In 2004 legislators created an exemption from the cap for 20,000 advanced degree graduates of U.S. universities. The USCIS will exempt the first 20,000 petitions for H-1B workers who have a master's degree or higher from a U.S. institution of higher learning. After those 20,000 slots are filled, the USCIS will apply petitions for H-1B workers with a master's degree or higher against the annual cap of 65,000.
Step One: Obtaining Prevailing Wage Determination You must obtain a prevailing wage determination from an acceptable wage survey source or the local employment office that has jurisdiction over your geographical area of employment. After obtaining the prevailing wage for the offered position you must file an online LCA with Department of Labor.
Step Two:An LCA is an application to the U.S. Department of Labor ("DOL"), whereby an employer assures the DOL that hiring a foreign worker would not be detrimental to similarly situated U.S. workers. If certified, the LCA will then be submitted to U.S. Citizenship and Immigration Services along with the petition for H-1B classification.
Filing with the U.S. Citizenship and Immigration Services ("USCIS")
Filing with the USCIS entails submitting proof of your qualifications and proof that the offered job conforms to the criteria set in place. Additionally, you must submit certain forms describing the job and providing certain basic information about the foreign worker and the employer. Below, please find a list of forms and documents that must be included in the petition: