Non Immigrant Visa Petition
H-1B is a nonimmigrant visa category used by employers to gain authorization for temporary employment of professional workers. The position offered must be a specialty occupation which can be proved by satisfying one of the following:
- Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position
- The degree requirement for the job is common to the industry or the job 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
- 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
Labor Condition Application (LCA)
U.S. employer must obtain a certification of a labor condition application (LCA) from the Department of Labor (DOL). This application includes certain attestations, a violation of which can result in fines, bars on sponsoring nonimmigrant or immigrant petitions, and other sanctions. The application requires the employer to attest that it will comply with the following requirements:
• The employer will pay the alien worker the wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for the position in the geographic area in which the alien worker will be working.
• The employer will provide working conditions that will not adversely affect other similarly employed workers.
• At the time of the labor condition application, there is no strike or lockout at the employer’s place of business.
• Notice of the filing of the labor condition application with the DOL has been given to the union bargaining representative or has been posted at the place of business.
Period of Stay
An alien can be in H-1B status for a maximum of 6 years. There are some exceptions under which H-1B can be extended beyond the 6 year limit.
The H-1B visa has an annual cap of 65,000 each fiscal year, of which 6,800 are set aside for Chile and Singapore. In addition to the regular cap, 20,000 are set aside each fiscal year for those who have received a U.S. Master’s degree or higher. H-1B workers who are sponsored by or employed at an institution of higher education or its affiliate or related nonprofit entities or a nonprofit research organization, or a government research organization are not subject to this numerical cap.
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