H-1B Visa – Employment Based

Boston Employment Visa Attorneys

At Mercado & Rengel we understand your employment-based immigration needs. We are available for consultation globally and can schedule in person interviews via Skype, telephone or in person at any one of our locations. The H1B visa is the most commonly used non-immigrant visa for foreign nationals seeking to enter the United States to live and work.

H1B visas may initially be granted for a period of up to three years to workers in “specialty occupations” – positions requiring at least a bachelor’s degree in a specific or related field. According to federal law, applications for such visas are also “site specific,” meaning that a foreign worker can only work for the company who is submitting the application for the visa.

The regulations define a “specialty occupation” as requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor including but not limited to architecture, engineering, mathematics, physical sciences, social sciences, biotechnology, medicine and health, education, law, accounting, business specialties, theology, and the arts, and requiring the attainment of a bachelor’s degree or its equivalent as a minimum (with the exception of fashion models, who must be “of distinguished merit and ability”). Likewise, the foreign worker must possess at least a bachelor’s degree or its equivalent and state licensure, if required to practice in that field. The H1B work-authorization is strictly limited to employment by the sponsoring employer.

The current law limits to 65,000 the number of foreign nationals who may be issued a visa or otherwise provided H-1B status each fiscal year, and applications are accepted beginning on April 1 of each year. The process for obtaining an  H1B is as follows:

  • The first step consists of confirming that the position of the employee the company is trying to obtain an H1B Visa for is a specialty occupation, and that the employee has the correct degree or certificate to legally engage in the specific specialty occupation.
  • After confirming this information, the company will then need to get the PWD or Prevailing Wage Determination for the position. This information is readily available through the online wage library. Companies are also able to the PWD information by submitting a request to the National Prevailing Wage Center.
  • The next step is for the company to file a Labor Certification Application (LCA). The LCA is an application that includes the information about the company that is requesting the H-1B Visa. The LCA also includes information about wages and work benefits. There is another waiting period that is included in this particular step. The LCA application can take between seven days to three-weeks to process.
  • The final step is submitting the specific form I-129 to the USCIS. The form I-129 can only be submitted after the Labor Certification Application (LCA) has been certified. The employment agreement must be included in the submission with the form I-129, along with the documents that support the employees’ education and qualifications, such as, resumes, training certificates, and anything else that confirms an employees’ formal ability to engage in a specialty occupation. There is also sometimes the necessity to include in the submission the proof that a specific company is able to pay the necessary wages as well as why a foreign employee should be hired by the company in question.

Family Members

H-4 visas are issued to an H-1 holder’s spouse and children under twenty-one years of age. Holders of H-4 visas are considered to be dependents of H1B visa holders. As H-4 status holders, spouses and children under twenty-one years of age may be entitled to enter and remain in the United States for the duration of the H-1 holder’s authorized stay. The duration of their stay is limited to and equal to that of the H1B visa holder (this is called “coextensive” stay). H-4 holders are permitted to attend school on either a part-time or full-time basis. H-4 holders, however, are not permitted to work unless otherwise authorized by the USCIS.