U.S. businesses use the H-1B visa program to employ foreign workers in specialty occupations that require the theoretical or practical application of a body of highly specialized knowledge, including but not limited to: scientists, engineers, or computer programmers.
Requirement 1 – You must have an employer-employee relationship with the petitioning U.S. employer.
Before you do anything you must have an employer and employee relationship with an American Employer. A valid employer-employee relationship is determined by whether the American employer may hire, pay, fire, supervise or otherwise control the work of the H-1B worker. In some cases, the sole or majority owner of the petitioning company or organization may be able to establish a valid employer-employee relationship, if the facts show that the petitioning entity has the right to control the beneficiary’s employment. It is very important to document and demonstrate this aspect of the H-1B visa application to avoid pre-screening.
Requirement 2 – Your job must qualify as a specialty occupation worker by meeting one of the following criteria:
- A bachelor’s degree or higher degree or its equivalent is normally the minimum requirement for the particular position;
- The degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor’s degree in a field related to the position;
- The employer normally requires a degree or its equivalent for the position; or
- The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
Requirement 3 – Your job must be in a specialty occupation related to your field of study.
This can be done in a number of ways for example a detailed explanation of the specific duties of the position, the product or service your company provides, or the complex nature of the role you will perform, and how your degree relates to the role.
Written opinions from experts in the field explaining how the degree is related to the role you will perform.
Requirement 4 – You must be paid at least the actual or prevailing wage for your occupation, whichever is higher.
Requirement 5 – An H-1B visa number must be available at the time of filing the petition, unless the petition is exempt from numerical limits.
The H-1B visa has an annual numerical limit, or cap, of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap.
Additionally, you will need to complete all sections of the Form I-129 petition, including the H Classification Supplement and the H-1B Data Collection and Filing Fee Exemption Supplement. Make sure each form has an original signature, preferably in black ink.
Include signed checks or money orders with the correct fee amount.
Submit all required documentation and evidence with the petition at the time of filing to ensure timely processing. Ensure there is only one H-1B position for the beneficiary of each petition.You must file the petition to the correct USCIS service center. To avoid rejection it is your responsibility to ensure that Form I-129 is completed accurately and submitted properly. You must also submit a certified Department of Labor Labor Condition Application or ETA 9035) at the time you file your petition.
Note: USCIS encourages petitioners to keep Department of Labor LCA processing times in mind when preparing the H-1B petition and plan accordingly. If the LCA is certified for multiple workers, you must provide the name and USCIS case receipt number of any foreign worker who has previously used the LCA.
Petitioners must to sign the LCA before submitting it with the petition to USCIS.
Required Fees.
Base filing fee:
$325
American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee:
$750 for employers with 1 to 25 full-time equivalent employees, unless exempt
$1,500 for employers with 26 or more full-time equivalent employees, unless exempt
Fraud Prevention and Detection Fee:
$500 to be submitted with a request for initial H-1B status or with a request for a beneficiary already in H-1B status to change employers.
Public Law 111-230:
$2,000 to be submitted by a petitioner that employs 50 or more employees in the United States, if more than half of those employees are in H-1B or L-1 nonimmigrant status.
must be submitted with a request for initial H-1B status or a request for a beneficiary already in H-1B status to change employers
Premium Processing Fee:
$1,225 for employers seeking Premium Processing Service
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