H-1B Nonimmigrant Visa: Specialty Workers
Work authorization for H-1B foreign specialty workers is employer-specific (i.e. limited to employment with the approved employer/petitioner).
Numerical H-1B Visa Limitations
Each year, Congress limits the number of new H-1B nonimmigrants admitted to the U.S.; it is currently capped at 65,000. Each year, USCIS accepts petitions beginning April 1 until the cap is filled. Petitions are subject to random lottery selection for review and adjudication. If the application is approved, the H-1B visa would be valid for use beginning October 1. Upon approval, the applicant must attend a visa appointment at a U.S. Consulate or Embassy abroad (unless Canadian).
The first 20,000 petitions filed on behalf of beneficiaries with a U.S. Master’s degree or higher are exempt from the numerical cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities, a nonprofit research organization, or a government research organization are not subject to this numerical cap.
Prerequisites to Filing an H-1B Petition
There are numerous obligations of an H-1B employer that must be considered:
- The petitioner must be a viable entity that can pay the applicant the prevailing wage for someone in a similar position in the location where the work is primarily performed.
- A Labor Condition Application (LCA, or ETA Form 9035) must be certified by the Department of Labor (DOL) before the petition is submitted to USCIS.
- The employer must also document compliance with the LCA requirements in a “Public Access File” (PAF). The LCA and PAF contain standard attestations that the employer must make, as well as basic wage and location information about the proposed H-1B employment, including rate of pay, period of employment, and work location.