H1B Professional Worker

Overview 

      The H-1B program allows an employer to temporarily employ a foreign worker in the U.S. on a nonimmigrant basis in a specialty occupation or as a fashion model of distinguished merit and ability. A specialty occupation requires the theoretical and practical application of a body of specialized knowledge and a bachelor's degree or the equivalent in the specific specialty (e.g., sciences, medicine and health care, education, biotechnology, and business specialties, etc). Current laws limit the number of foreign workers who may be issued a visa or otherwise be provided H-1B status to 65,000. 

      Effective January 1, 2004, the H-1B1 program became available, allowing employers to request foreign workers in the U.S. in a specialty occupation from Chile and Singapore. Current laws limit the number of foreign workers who may be issued an H-1B1 visa to 6,800. For more information regarding H-1B1 petitions, see the USCIS website or Consular sections for Chile or Singapore. 


      The H-1B and H-1B1 certification is valid for the period of employment indicated on the Labor Condition Application (LCA), specifically the Form ETA 9035 or Form ETA 9035E, for up to three years. 

      A foreign worker can be in H-1B status for a maximum continuous period of six years. After the H-1B expires, the foreign worker must remain outside the U.S. for one year before another H-1B petition can be approved. Certain foreign workers with labor certification applications or immigrant visa petitions in process for extended periods may stay in H-1B status beyond the normal six-year limitation, in one-year increments. For more information on extended stay possibilities, see the USCIS website. 

      Extensions and renewals are allowed under the H-1B1 program; however adjustment of status to another nonimmigrant category or to legal permanent residency is not permitted. Therefore one-year increment extensions, due to labor certification applications or immigrant visa petitions in process for extended periods, do not apply to H-1B1 visa holders.

Qualifying Criteria 

      To hire a foreign worker on an H-1B or H-1B1 visa, the job must be a professional position that requires, at a minimum, a bachelor's degree in the field of specialization. The occupation for which the H-1B or H-1B1 classification is sought must also normally require a bachelor's degree as a minimum for entry into the occupation. 

      Each employer seeking an H-1B or H-1B1 non-immigrant in a specialty occupation, or as a fashion model of distinguished merit and ability, has several responsibilities: 

      The employer shall submit a completed Labor Condition Application (LCA) in the manner prescribed by the regulations. By completing and signing the LCA, the employer agrees to several attestations regarding an employer’s responsibilities, including the wages, working conditions, and benefits to be provided to the H-1B nonimmigrant; these attestations are specifically identified and incorporated by reference in the LCA, as well as being set forth in full on Form ETA 9035 Cover Pages. 

      The employer shall make the LCA and necessary supporting documentation available for public examination at the employer's principal place of business in the U.S. or the place of employment within one working day after the date on which the LCA is filed with ETA. 

      The employer may then submit a copy of the approved LCA to USCIS with a completed petition (USCIS Form I-129) requesting H-1B classification. 

      The employer shall not allow the nonimmigrant worker to begin work until USCIS grants the worker authorization to work in the U.S. for that employer or, in the case of a nonimmigrant who is already in H-1B status and is changing employment, to another H-1B employer until the new employer files a petition supported by a certified LCA. 

      The employer shall maintain documentation to meet its burden of proof with respect to the validity of the statements made in its LCA and the accuracy of information provided, in the event that such statement or information is challenged. The employer shall also maintain such documentation at its principal place of business in the U.S. and shall make such documentation available to DOL for inspection and copying upon request.

Filing Process: 

      H-1B or H-1B1 statuses require a sponsoring U.S. Employer. The first step to hiring most H-1B workers from outside the U.S. is for the employer to file a labor condition application (LCA) with the Department of Labor (DOL). Then the employer is required to file the LCA approval notice with the I-129 petition. For specific procedures on filing, please visit the Department of Labor’s Employment and Training Administration. The employer must also determine the actual wage for the position and must pay at least the higher of the two wage rates. The actual wage is the rate paid by the employer to other individuals with similar experience and qualifications for that type of work. 

      The employer must also inform workers of the intent to hire a foreign worker by posting the completed LCA, Form ETA 9035 or Form ETA 9035E for the position. The posting must occur within the 30-day period preceding the date that the form is submitted to the DOL. Posting may occur in one of two methods: hard copy or electronic notice. The hard copy notice must be given to the bargaining representative for workers in the occupation or, if there is no bargaining representative, be posted for 10 consecutive days in at least two conspicuous locations at each place of employment where any H-1B or H-1B1 nonimmigrant will be employed. Distribution can be by whatever means the employer normally communicates with its employees (e-mail, bulletin board, and home web page). A copy of the LCA must also be provided to each H-1B or H-1B1 nonimmigrant. 

      LCAs can be filed with ETA using one of three methods: online submission, facsimile transmissions, or U.S. mail.

LCA Online System: 

      If the employer submits the LCA (Form ETA 9035E) via the web-based system, it is important to read the Online Help Section "Getting Started" before completing and submitting LCA’s online. The online help provides step-by-step instructions for completing and submitting LCA's electronically. The LCA Online System is available at: http://www.lca.doleta.gov/. 

      Employers submitting LCA's via the LCA Online System can expect a response in minutes or, in the case of a question regarding the prevailing wage source, the next working day. Assistance in electronically filing LCA’s may be obtained by contacting This e-mail address is being protected from spambots. You need JavaScript enabled to view it. .

Facsimile transmission (FaxBack): 
      If the employer submits the LCA (Form ETA 9035) by FaxBack, the transmission shall be made to 1-800-397-0478 (regardless of the intended place of employment for the H-1B or H-1B1 nonimmigrant(s)). The cover pages for Form ETA 9035 (Form ETA 9035CP) should NOT be faxed with Form ETA 9035. 

      Employers submitting LCA's via the FaxBack system can expect a response within two business days. If you have not had a response within two business days, please call 877-872-5627 for assistance.

U.S.Mail: 
       f the employer submits the LCA (Form ETA 9035) by U.S. Mail, the LCA shall be sent to the ETA application-processing center at the following address:

ETA Application Processing Center
P.O. Box 13640
Philadelphia, PA 19101 

      All matters other than the processing of LCA's (i.e., prevailing wage challenges by employers) are within the jurisdiction of the certifying officers in the appropriate Field Offices. 

      Employers must keep the LCA in its public file and provide a copy to workers for whom the LCA supports their visa. 

      Upon LCA certification, the employer files the I-129 Petition, the required filing fee, and other supporting documentation (including the approved LCA) to USCIS. Unless specifically exempt under the law, the employer must pay filing USCIS fees. 

      The petition (Form I-129) should be filed by the U.S. employer with: 

      A certified labor condition application from the Department of Labor;
Copies of evidence that the proposed employment qualifies as a specialty occupation; 

      Evidence the alien has the required degree by submitting either:

A copy of the person's U.S. baccalaureate or higher degree, which is required by the specialty occupation;
A copy of a foreign degree determined to be equivalent to the U.S. Degree; or
Copies of evidence of education and experience, which is equivalent to the required U.S. degree;
A copy of any required license or other official permission to practice the occupation in the state of intended employment; and Employment offer letter. 

      Some terms and conditions of the H-1B classification: 

      Work authorization for H-1B foreign specialty workers is employer-specific (i.e. limited to employment with the approved employer/petitioner).
A change of employer requires a new H-1B petition; under some circumstances, a nonimmigrant who was previously issued an H1-B visa or provided H1-B nonimmigrant status may begin working for a new H1-B employer as soon as the new employer files a “nonfrivolous” H1-B petition for the nonimmigrant.  
      Multiple employers require multiple H-1B petitions. 
      The employer is responsible for return transportation costs for an employee terminated prior to the end of the approved period of employment. 
      H-1B foreign specialty workers are not required to maintain foreign residence and may seek permanent residence in the U.S. 
      Dependents (spouses and unmarried children under 21 years of age) of H-1B workers are entitled to H-4 status with the same restrictions as the principal. Dependents may not be employed under the H-4 classification.