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The H-1B category allows for the temporary employment of an alien as a professional in a specialty occupation. This is defined by the U.S. Citizenship and Immigration Services (USCIS) as an occupation requiring practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent.
An individual cannot self-sponsor in this category. Employer sponsorship is required.
H-1B status is employer specific. It allows the employee to work for a specific U.S. employer for a specific period of time and in a specific location. Multiple employers are allowed as long as each employer submits a separate H-1B petition, which is approved by USCIS.
To be eligible for H-1B status, a foreign national must have evidence of:
H-1B status is limited to a maximum of three years initially and up to a total of six years through extensions.
The H-1B application process requires a prevailing-wage determination, certification of a Labor Condition Application (LCA) by the Department of Labor (DOL) and processing by USCIS. The average time required for the various processes, once the hiring department’s paperwork has been received by the ISSC, is as follows:
It is important that this timing be considered when consideration is made for employment of an individual. If the prospective employee is in the U.S. on another visa type such as F-1 (for Optional Practical Training), or is outside the U.S. waiting to enter in H-1B status, it is essential to begin this process early. A prospective employee currently in the U.S. in H-1B status through another employer is eligible to begin employment at ASU if an H-1 B is filed before termination of the current employment.
A Labor Condition Application (LCA) must be approved by the U.S. Department of Labor (DOL) before the H-1B petition can be submitted to USCIS. The LCA establishes that the hiring entity is providing the prevailing wage and fair working conditions and benefits for the intended employee. The employer must prove that there will be no adverse impact on the wages and working conditions of U.S. workers.
The law also requires that the employer of an H-1B be willing to pay the cost of a return to the foreign national’s home country if that person is terminated before the end of the contractual period.
Checks should be made payable to the Department of Homeland Security.