H-1B visas allow U.S. employers to hire foreign professionals to work in skilled occupations that require at least a Bachelor’s Degree or the equivalent education and work experience. Traditional skilled occupations include engineering, mathematics, economics, finance and similar occupations. Other occupations would require careful analysis to determine eligibility.
First, an employer must obtain a labor condition application (LCA) from the U.S. Department of Labor. The LCA requirement is intended to prevent skilled foreign workers from depressing the wages of local workers. U.S. employers need to take care in complying with LCAs in order to avoid actions by the Department of Labor.
Second, after LCA approval, an employer must file an H-1B visa petition with U.S. Citizenship & Immigration Services (USCIS). USCIS examines the H-1B visa petition for key issues, such as whether: (a) the employee has a Bachelors Degree or work experience required to perform the duties of the skilled job being offered, or, (b) whether the job duties actually require a skilled worker. Careful planning is required to avoid these pitfalls.
This means H-1B visas are not available throughout the year unless a worker already has an H-1B visa, or the U.S. employer is an institution of higher education or related nonprofit entity, or governmental research organizations. An H-1B visa lottery is held by USCIS each year in April to determine which applicants will receive new visas. We recommend that U.S. employers plan ahead to make sure that new H-1B visa applications are ready to file by April.
The spouse and children (under the age of 21) of an H1B employee are authorized to live or study in the U.S. in H-4 status, but are not permitted to work.
H-1B visas are highly valued by employers and employees because they mesh very well with all green card processes. For example, H-1B visas become renewable for more than 6 years if the foreign employee is being sponsored by an employer for a green card, and permit foreign travel throughout the green card process.
We will alert you early on to planning issues and facilitate preparation of the visa so that your visa experience is positive and trouble-free.