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H-1B Visa

The H-1B Visa is a nonimmigrant visa in the US. US employer may employ foreign individuals and apply H-1b visa for them. H-1b status can last for up to six years and may lead to a green card. At first, the visa may be granted for up to three years. It could then be extended for up to two years and eventually for one further year, which account for a maximum of six years. However, foreign employees can apply for permanent residence while they are on H-1b status. If application for a green card is not approved and the foreign employee still want to work in the US, he or she must live outside the US for more than one year before making a new application for an H or L visa.

The H-1b visa is usually used for professional employee, such as engineers, researchers, computer scientists, whose work require a higher degree of specialized knowledge. The application for H-1b visa should be petitioned by the US employer, not the professional foreign employee. In addition, there is annual quota restriction on this type of visa.


For US employer

The first important condition for a US employer to sponsor H-1b application for foreign employees is that the US employer must have an IRS Tax Number. Moreover, US employer should meet the following criteria to sponsor an H-1b visa:

1.        The wage that paid to the foreign worker should be higher than the prevailing wage that determined by the State Employment Services Agency, or higher that the wage paid to similar workers in the company.

2.        The employment of the foreign employee will not adversely affect the condition of similar US employees in the company.

3.        The US employer should complete procedures of the Labor Condition Application (LCA) with the Department of Labor and get approval. The US employer should keep records of the employment for inspection by the Department of Labor.

4.        The US employer should pay for transportation of the foreign employee if the US employer terminates the employment in advance.

For foreign employee

Requirement for the foreign employee is that he or she must have the ability to work in the special occupation. This can be demonstrated by:

1.        The employee should have received appropriate academic degree or equivalent by experience through progressively responsible positions. Usually the employee should possess a relevant US college degree or an equivalent non-US college degree. Alternatively, the foreign employee should have more than 12-year of working experience that is equivalent to a US college degree.

2.        If there is requirement for a State or Federal license for the special occupation the foreign employee is going to work for the US employer, he or she must possess such license to qualify for the H-1b visa. This requirement usually refers to doctors, lawyers and accountants.

Application Procedure

For the first step, US employer should file a Wage Determination Form with the Department of Labor to make sure that the foreign employee is being paid at least the prevailing wage for the profession.

After the Wage Determination Form has been certified by the Department of Labor, the US employer should file Labor Condition Application (Form ETA 9035) with the Department of Labor.

After Form ETA 9035 is certified by the Department of Labor, the US employer should then file Form I-129 with the USCIS. Decision may be issued in two to six weeks.


Petition for H-1b visa is filed by the US employer. Supporting documents are as follows:

1.        Approved labor condition application from the Department of Labor

2.        Proof of the foreign employee’s possession of the required degree

a)        A copy of the foreign employee’s U.S. college degree or any higher degree that is required in his or her specialty occupation.

b)        A copy of the foreign employee’s foreign degree that is equivalent to the U.S. college degree, or

c)        Evidence of education and experience that is equivalent to the required U.S. college degree;

d)        A copy of any required State or Federal license to practice the occupation in the state of intended employment; 

3.        A copy of any written contract between the US employer and foreign employee or a summary of the terms of any oral agreement.



美国执业大律师:胡德翰 律师(John D. Hu, Esq.)美国胡德翰律师楼              


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