Are you considering hiring H-1B Visa workers? The H-1B visa program permits U.S. employers to temporarily hire foreign workers in specialty occupations. The law currently limits the number of H-1B visas that can be issued annually.
To hire an H-1B worker, an employer must petition the U.S. Citizenship and Immigration Services. Below are six steps involved in the process.
1. Make sure the job qualifies as a specialty occupation.
USCIS defines specialty occupations as jobs that require “the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent.” Examples include engineering, physical sciences, mathematics, medicine, education, computer sciences, biotechnology, and business specialties.
A full list of the eligibility criteria can be found on the USCIS website.
2. Verify that an H-1B employer-employee relationship exists.
The employer must be able to prove a valid employer-employee relationship. Per the USCIS, the definition of this relationship is based on “an employer’s right to control the means and manner in which the work is performed.”
The prospective worker must meet the Immigration and Nationality Act’s definition of “H-1B nonimmigrant,” and the employer must qualify as a “United States employer,” as defined by the Code of Federal Regulations.
Guidance on establishing the employer-employee relationship can be obtained in the USCIS memorandum titled “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements.”
3. Determine the pay rate for the role.
H-1B workers must receive no less than the “required” wage; specifically, the higher of the prevailing wage or the amount the employer pays employees in similar positions. Prevailing wage information can be obtained from the state workforce agency.
The pay rate for the prospective H-1B worker must be reported — on the Labor Condition Application — to the U.S. Department of Labor.
4. Notify U.S. employees.
No more than 30 days before filing the LCA with the DOL, the employer must give its U.S. workforce a notice that meets the requirements of 20 C.F.R. §655.734. Required information includes how many H-1B visa workers the employer is looking to hire, wages offered and the period of employment.
More information on the notice requirements can be found in the DOL’s Fact Sheet #62M: What are an H-1B employer’s notification requirements?
5. File the LCA and receive certification.
The employer must submit the LCA to the DOL and obtain certification from the agency no later than six months prior to the intended employment start date. There is no fee to file the LCA with the DOL.
Tips for filing the LCA are available on the DOL’s Office of Foreign Labor Certification webpage.
6. Complete and submit Form I-129 to the USCIS.
After receiving LCA certification, the employer must file Form I-129, “Petition for a Nonimmigrant Worker,” with the required USCIS service center. A copy of the certified LCA along with applicable fees must be included. For a breakdown of the various fees, see the filing fee section of Form I-129.
If the Form I-129 petition is approved, the employer will be notified accordingly via Form I-797. The prospective worker may then apply (from abroad) for an H-1B visa at a U.S. embassy or consulate.
Employers interested in hiring H-1B visa workers might want to hire an immigration lawyer who can ensure a successful application and transition.
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