H-1B Visa Immigration Attorney
The most popular form of an employment or work visa is an H-1B. Unlike
other visas, an H-1B visa must be initiated by the employer, not the employee.
The employer can only accept a foreign national employee only once it
has an approved
Labor Certification Condition application from the Department of Labor, among other requirements.
What is a Labor Certification Condition Application?
A Labor Certification Condition Application is completed online by the
employer's immigration attorney. The employer certifies, among other
things, that the "H-1B nonimmigrant will be paid at least the actual
wage level paid by the employer to all other individuals with similar
experience and qualifications for the specific employment in question
or the prevailing wage level for the occupation in the area of employment,
whichever is higher." In other words, the employer must certify that
the H-1B employee will be paid the "prevailing wage" for individuals
working within the same profession.
How does the Employer Determine the "Prevailing Wage"?
The prevailing wage can be determined in a number of ways, but the most
common procedure is to submit a prevailing wage request to the Department
of Labor. The prevailing wage request will outline the position, its requirements,
duties and responsibilities. The Department of Labor then responds with
what it believes to be the "prevailing wage" for someone within
that profession. The employer is obligated to pay the prevailing wage.
Who Qualifies for an H-1B Visa?
In order for an employee to be eligible for an H-1B, the job
and the employee's profession must be a specialty occupation. This has
been defined as including, but not limited to, architects, engineers,
lawyers, physicians, surgeons, and teachers, among others. Generally,
an H-1B is reserved for individuals with specialty
knowledge, as opposed to mere skill, and a bachelor's degree or its equivalent
Second, there must be an employer-employee relationship. An independent
contractor, or someone merely working on a commission basis is not sufficient
for an H-1B visa.
Simply put, an attorney will assist the employer in showing that the immigrant
employee has the credentials and skills for the occupation and there is
a temporary job available in a specialty occupation matching the immigrant
employee's educational background.
Who Pays For the H-1B Visa?
Generally, the employer, not the employee, must pay for most of the costs
associated with an H-1B visa. Working with an experienced employment immigration
attorney can guide the employer to reduce risks associated with these
What is the "Cap" for H-1B Employees?
H-1Bs are capped at 65,000 visas per year. There are an additional 20,000
visas available for those with a master's degree. However, there are
many employees and employers that may be
cap-exempt. For example, hiring an individual who is currently on an H-1B visa is
How long will an H-1B Visa Be Issued For?
An H-1B visa may be approved for up to 3 years, but may not exceed the
period of the validity of the Labor Certification Condition. With exceptions,
an H-1B visa is valid for no more than six years.
Applying for an H-1B visa for an employee is a complex process, requiring
many steps, procedures and governmental entities. If you are seeking to
hire a foreign national, you should
contact an experienced employment immigration attorney to assist your company with this task.