Yen Hughes Law PC Immigration

Yen Hughes Law PC

H-1B Visa

What is an H-1B visa?

An H-1B “specialty occupation” visa status allows foreign professional workers to engage in temporary employment with a U.S. company sponsor. It is the most common type of temporary work visa for professional workers. This visa requires that the foreign worker have a bachelor’s degree or the foreign equivalent in the field of study related to the job position.

H-1B visas are valid for an initial period of three years with the possibility of extension for up to three more years. The employer has the option to petition for an H-1B period that is less than three years, and the employee can work either part-time or full-time. Finally, an H-1B worker may hold more than one H-1B visa simultaneously for two or more employers as long as they have an approved petition for each company.

Who qualifies for an H-1B visa?

Examples of fields that typically have H-1B job positions include engineering, mathematics, social sciences, medicine and health, education, accounting, law, computer science positions, and occupations that normally require either a four-year degree or a combination of education and experience in the field. If a prospective H-1B worker does not have a four-year degree, but has sufficient experience in the field, the worker may still qualify.

What is the process?

Obtaining an H-1B visa for a foreign worker involves a three to four step process, depending on the foreign worker’s situation. The process requires:

  1. Collecting information and documentation needed for the petition
  2. Filing a Labor Condition Application with the Department of Labor
  3. Filing a Petition for Non-immigrant Worker with the U.S. Citizenship and Immigration Services
  4. Obtaining an H-1B visa stamp from the U.S. Consulate abroad, if the prospective worker is outside the U.S. or has violated their current status

H is important to file early because the process can take several months. However, an employer cannot file more than six months in advance of the prospective workers’ employment start date. Our team has experience working with both prospective workers and employers to ensure the process goes as quickly and smoothly as possible. If you would like to begin the process, please Contact us today.

What is the prevailing wage standard and how is it calculated?

All employers who plan to hire H-1B workers must pay the H-1B employee the entire amount of the prevailing wage or the actual wage, whichever is higher.

The Department of Labor defines the prevailing wage as being the wage paid to workers in a specific job category within a specific geographic region based on a Department of Labor determination or another authoritative source. Benefits are not included in calculating the prevailing wage. Further, employers are required to offer the same benefits to H-1B workers as their current similarly situated U.S. workers.

All employers are required to complete an actual wage memorandum in a public inspection, which is available to the public and importantly, its current employees. Additionally, employers are required to complete a Labor Condition Application.

What is a Labor Condition Application (LCA)?

The Department of Labor requires employers to file an LCA which shows the employer’s determination of the actual wage paid to similarly employed workers, obtaining prevailing wage information for the Department of Labor, and filing the LCA with the Department of Labor regional office. This gives notice to employees of the employer’s intent to hire an H-1B worker, and informs the Department of Labor of all prevailing wage information and documentation.

The notice requirement to employees can be met by posting a copy of the LCA in two locations at the work site for 10 consecutive business days.

What if the prospective employee already has an H1-B visa working for another company?

An employee who already holds an H-1B visa working for another U.S. company may begin working for a new H-1B employer as soon as that new employer file the H-1B petition if certain conditions are met, according to new immigration laws. Thus, an H-1B worker may be able to port to a new employer as soon as the petition is filed, without waiting for U.S. Citizenship and Immigration Services approval of the new petition. Talk to our team today to determine if your prospective employee is eligible for this benefit.