LEGAL GUIDE
Written by attorney Carl Michael Shusterman

H-1B Visa Guide: What You Need to Know

How to get an H-1B visa.

http://shusterman.com (213) 623-4592 x0 Former INS Trial Attorney Carl Shusterman (1976-82) explains the eligibility requirements for H-1B temporary work visas. Schedule a legal consultation (by Zoom, telephone or in person) at https://app.acuityscheduling.com/sche...

H-1B visas are granted to professionals whose jobs require a Bachelors degree or equivalent. The H-1B visa applicant must be sponsored by an employer who agrees to pay either the prevailing wage, or the actual wage, whichever is higher.

Since 1991, H-1B visas have been subject to a numerical cap, which is currently set at 85,000. Since employers submit over twice that many H-1B petitions, petitions are subject to a lottery.

However, the following H-1B petitions are exempt from the lottery:

  • Working "at" an institution of higher education;

  • Non-profit employers which are "affiliated" with or "related" to institutions of higher education;

  • Non-profit research organizations

  • Governmental research organizations

In addition, physicians who have received J waivers are not subject to the numerical cap..

Before submitting an H-1B visa petition, an employer must receive an approved Labor Condition Application (LCA) from the US Department of Labor. The employer must certify the following:

  • Wages: Pay the required wage to the workers for whom it will file a petition supported by the LCA for the duration of the authorized period of employment;

  • Working Conditions: Provide the nonimmigrant workers working conditions that will not adversely affect the working conditions of U.S. workers similarly employed, such as hours, shifts, vacation periods, and benefits based on the same criteria as those the employer offers to its U.S. workers;

  • No Strike or Lockout: Ensure that there is no strike, lockout, or work stoppage in the course of a labor dispute in the occupational classification at the place of employment at the time of filing the ETA Form 9035/9035E; and

  • Notice: Notify its U.S. workers that it intends to hire an H-1B nonimmigrant worker by either providing notice of the LCA to the bargaining representative (representing the workers of the employer in the same job classification and area of intended employment as the nonimmigrant worker), or where there is no bargaining representative, providing electronic notice of the filing of the LCA or by posting notice of the LCA in at least two conspicuous locations in the employer's place(s) of business in the area of intended employment. The notice must contain specific information about the nonimmigrant workers sought and the process for submitting allegations of misrepresentation or non-compliance related to the LCA. Since the ETA Form 9035/9035E contains this information, employers may choose to comply with the notice requirement by providing or posting a copy of the ETA Form 9035/9035E.

This video discusses various topics related to H-1B visas including Labor Condition Applications, cap-subject vs. cap-exempt H-1Bs, extension of stay, change of status, change of employers and post-6th year H-1B extensions.

For more information, please see our H-1B Visa Guide at http://shusterman.com/h1bvisaguide.html

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