H-1B Visa

 

The first step to hiring most H-1B workers from outside the U.S. is for the employer to file a labor condition application (LCA) with the Department of Labor. The employer is required to file the LCA approval notice with the I-129 petition.

Some terms and conditions of the H-1B classification:

  • Work authorization for H-1B foreign specialty workers is employer-specific, i.e. limited to employment with the approved employer/petitioner.
  • A change of employer requires a new H-1B petition; new employment (any employment other than the originally approved employment) cannot begin until a petition for change of employment (Form I-129) is approved by the INS.
  • Multiple employers require multiple H-1B petitions.
  • The employer is responsible for return transportation costs for employee terminated prior to the end of the approved period of employment.
  • H-1B foreign specialty workers are not required to maintain foreign residence and may seek permanent residence in the U.S.

Dependents

Dependents (spouses and unmarried children under 21 years of age) of H-1B workers are entitled to H-4 status with the same restrictions as the principal. Dependents may not be employed under the H-4 classification.

Including more than one worker in a petition

Each petition may only include one worker.

H-1B1 Specialty Occupations

The H-1B1 category applies to an alien coming temporarily to perform services in a specialty occupation which requires the theoretical and practical application of highly specialized knowledge requiring completion of a specific course of higher education.

Document Requirements for H-1B Classification Petition

The petition (Form I-129) should be filed by the U.S. employer with:

  • A certified labor condition application from the Department of Labor;
  • Copies of evidence that the proposed employment qualifies as a specialty occupation;
  • Evidence the alien has the required degree by submitting either:
  • A copy of the person’s U.S. baccalaureate or higher degree which is required by the specialty occupation;
  • A copy of a foreign degree determined to be equivalent to the U.S. degree; or
  • Copies of evidence of education and experience which is equivalent to the required U.S. degree;
  • A copy of any required license or other official permission to practice the occupation in the state of intended employment; and
  • A copy of any written contract between the employer and the alien or a summary of the terms of the oral agreement under which the alien will be employed.

H-1B2 Research and Development Project

The H-1B2 category applies to an alien coming temporarily to perform services of an exceptional nature relating to a cooperative research and development project administered by the Department of Defense.

Petition Document Requirements

The petition (Form I-129) must be filed by the U.S. employer and must be filed with:

A description of the proposed employment and evidence the services and project meet the above conditions; and
A statement listing the names of all aliens who are not permanent residents who have been employed on the project within the past year, along with their dates of employment.
Note: this category does not require an LCA.
H-1B3 Fashion Model

The H-1B3 category applies to a fashion model who is nationally or internationally recognized for achievements, to be employed in a position requiring someone of distinguished merit and ability.

Petition Document Requirements

The petition (Form I-129) should be filed by the U.S. employer with:

  • A certified labor condition application from the Department of Labor;
  • Copies of evidence establishing that the alien is nationally or internationally recognized in the field of fashion modeling. The evidence must include at least two of the following types of documentation which show that the person:
    * Has achieved national or international recognition in his or her field as evidenced by major newspaper, trade journals, magazines or other published material;
    * Has performed and will perform services as fashion model for employers with a distinguished reputation;
    * Has received recognition for significant achievements from organizations, critics, fashion houses, modeling agencies or other recognized experts in the field;
    * Commands a high salary or other substantial remuneration for services, as shown by contracts or other reliable evidence.
  • Copies of evidence establishing that the services to be performed require a fashion model of distinguished merit and ability and either:
    Involve an event or production which has a distinguished reputation; or
    The services are as participant for an organization or establishment that has a distinguished reputation or record of employing persons of distinguished merit and ability.