Guide to H-1B Visas: Essential Information for Employers

Finding and retaining top talent often requires looking beyond borders, and H-1B visas serve as a critical resource for U.S. employers seeking skilled foreign professionals. This specialized visa category enables companies to hire workers in specialty occupations; however, navigating the complexities of the application process and meeting compliance requirements can be challenging.

This guide provides essential information about H-1B visas that every employer should know.

Key Features of H-1B Visas

• Specialty Occupation: The H-1B visa is intended for positions that require the theoretical and practical application of specialized knowledge, typically requiring at least a bachelor’s degree or its equivalent in a related field. Common industries include technology, engineering, medicine, and academia.
• Employer Sponsorship: To hire a foreign worker under the H-1B visa program, U.S. employers must sponsor the individual by filing a petition with U.S. Citizenship and Immigration Services (USCIS). This process includes submitting a Labor Condition Application (LCA) to the Department of Labor (DOL), which ensures that hiring the foreign worker will not negatively impact U.S. labor conditions.
• Duration: The H-1B visa is initially valid for three years and can be extended for up to six years. In some cases, such as when a green card application is pending, extensions beyond the six-year limit may be possible.
• Annual Cap and Lottery System: The H-1B visa program is subject to an annual cap, limiting the number of new visas issued each year. The cap is set at 65,000 visas, with an additional 20,000 reserved for individuals holding advanced degrees from U.S. institutions. When the number of applications exceeds this cap, a lottery system is implemented to randomly select petitions for processing due to high demand.

Application Process

Step 1: Employers must file a Labor Condition Application (LCA) with the Department of Labor (DOL) to ensure compliance with wage standards and working conditions. The employer or agent must apply for and receive DOL certification of the LCA before proceeding.

Step 2: After LCA approval, employers must submit Form I-129, Petition for a Nonimmigrant Worker, to USCIS, providing detailed information about the job, the employee, and the employer’s compliance with H-1B regulations. This step is critical to ensure all documentation is accurate and complete.

Employer’s Obligations and Responsibilities

Employers have various obligations to fulfill when hiring under the H-1B program:

• Employers must pay the prevailing wage, as determined by the Department of Labor, throughout the duration of the H-1B worker’s employment. Failure to comply requires employers to compensate the worker for any back wages and may result in fines and penalties.
• Employers must promptly notify USCIS of any changes to the H-1B worker’s employment, such as job description, location, or position, by filing an amended I-129 petition. This petition must include all the documents from the original I-129, along with an explanation and justification for the change.
• Employers must treat H-1B workers the same as U.S. workers, ensuring they receive equal benefits and opportunities. H-1B workers should not be overlooked for promotions or other rewards due to their visa status.
• If an employer terminates an H-1B worker before their visa status expires, they are legally obligated to cover the cost of the worker’s return trip to their home country, as mandated by immigration law.

The H-1B visa program plays a significant role in enabling U.S. employers to hire foreign workers in specialty occupations. A clear understanding of the requirements and processes is crucial for employers to navigate this complex immigration pathway effectively.

Stay informed on the latest developments in employer-based immigration at our webcast: Employer-Based Immigration Changes Under the Trump Administration: Navigating the Shifting Landscape