H-1B Visa and Hiring a Foreign National

By: Vincent P. Martin
Immigration Attorney

What is an H-1B work visa? Who can file for an H-1B? What are the H-1B requirements?

The H-1B visa category is probably the most widely known but often times most incorrectly understood visa used by foreign workers. Below you will find straight-forward information about the ins-and-outs of this famous visa.

Generally, the H-1B visa category requires one to have at least a bachelor’s degree (or higher) or its equivalent and the position must require the degree held by the employee. That is to say, merely having a bachelor’s degree is not enough; the degree must match up with the occupation. The statutory language states:

An H-1B classification may be granted to an alien who will perform services in a specialty occupation which requires theoretical and practical application of a body of highly specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation in the United States, and who is qualified to perform services in the specialty occupation because he or she has attained a baccalaureate or higher degree or its equivalent in the specialty occupation.

The position must meet one of the following criteria:
a baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
the degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
the employer normally requires a degree or its equivalent for the position; or
the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

Note: If an employer terminates and H-1B employee before the end of the period of authorized employment, the employer will be liable for the reasonable costs of return transportation of the employee abroad. If the employee voluntarily terminates his or her employment prior to the expiration of the validity of the petition, the employer is not liable for return transportation.

A common question I receive is whether a person may file for his own H-1B visa.

The short answer is, no. In order to get an H-1B visa, one must be the beneficiary of an employer’s petition. In addition, one may hold H-1B status for up to three years consecutively and may apply for an extension for another three years, for a total of six years. Before filing a petition with the Immigration Service, formally known as U.S. Citizenship and Immigration Services (“CIS”), an employer must file a labor condition application (“LCA”) with the U.S. Department of Labor (“DOL”). An LCA is often confused with a labor “certification” application (“LC”); however, they are very different applications and serve very different purposes. The LCA is used for H-1B cases while the LC is used for permanent resident (green card) purposes. Each employer for which the employee will work must file its own petition and LCA.

At the time of the writing of this article, there are only 65,000 H-1B visas available each year.

In some cases petitions are “cap-exempt.” H-1B applications for the following purposes are not subject to the visa cap:

• Extend the amount of time a current H-1B worker may remain in the United States.
• Change the terms of employment for current H-1B workers.
• Allow current H-1B workers to change employers.
• Allow current H-1B workers to work concurrently in a second H-1B position.

For more information about Immigration Law, visit our site at www.cundyandmartin.com
Vincent P. Martin
Immigration Attorney
952-746-4111
vmartin@cundyandmartin.com

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