To obtain an H-1B visa for a skilled worker, the employer must file a petition on behalf of the worker. The petition must be filed with the United States Citizenship and Immigration Services (USCIS) during the designated filing period, which usually starts in April every year.
The H-1B visa is a nonimmigrant visa that allows foreign professionals to work temporarily in the United States in specialty occupations. The employer must demonstrate that the position requires a specialized skill set that only the foreign worker possesses and that the worker meets the qualifications for the position.
The employer must first obtain a Labor Condition Application (LCA) certified by the Department of Labor (DOL). The LCA confirms that the employer will pay the prevailing wage to the foreign worker and that the employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. The employer must then submit Form I-129, Petition for Nonimmigrant Worker, along with supporting documentation, to USCIS. The documentation must establish that the worker possesses the requisite education and/or work experience to perform the job duties.
The H-1B visa has an annual cap of 65,000 visas per fiscal year, plus an additional 20,000 visas for foreign workers with a master's degree or higher from a U.S. institution of higher education. If the number of applications exceeds the cap, USCIS conducts a random selection process, known as a lottery, to determine which petitions will be accepted for processing.
It is important to note that the H-1B visa program has faced significant scrutiny and changes in recent years, including increased denials and Requests for Evidence (RFEs) from USCIS. It is advisable to consult with an experienced immigration attorney to ensure that the employer and the foreign worker meet all of the eligibility requirements for the H-1B visa and to respond to any potential RFEs.
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