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The H-1B Visa Classification Toolkit
Practical Law Toolkit 0-566-6686 (Approx. 10 pages)
The H-1B Visa Classification Toolkit
by Practical Law Labor & Employment
| Maintained • USA (National/Federal) |
Resources to help employers prepare and file H-1B nonimmigrant visa petitions for foreign workers, and for employers with H-1B workers.
The H-1B nonimmigrant visa category is one of the most popular and frequently used work visas. Unlike most other visa categories, it applies broadly to different types of:
- Employers.
- Industries.
- Foreign nationals.
- Jobs.
Employers may file a petition to sponsor a foreign national for H-1B status if both:
- The employer offers the worker a job in the US that requires a bachelor's or higher degree in a field related to the job.
- The worker holds at least the minimum education required.
If approved, the H-1B status allows the foreign worker to be employed by the petitioning employer in the job described in the H-1B petition for up to three years, with the possibility for further extensions or amendments to the H-1B status, up to a maximum of six years. Employers may obtain an extension of H-1B status for certain workers beyond the generally applicable six-year total.
An employer must obtain a certified Labor Condition Application (LCA) from the Department of Labor (DOL) before it may file an H-1B visa petition.
To obtain a certified LCA, the employer must make attestations about the wages and working conditions of both H-1B and US workers. The employer must also maintain a Public Access File (PAF) that is available for inspection by any member of the public. The PAF and other data supporting the employer's attestations are subject to investigation by the DOL. An employer violating the LCA regulations is subject to significant financial penalties and may be barred from immigration sponsorship for a year or more.
Access to new H-1B visas is limited to 85,000 each fiscal year (which runs from October 1st to September 30th). The 85,000 available new H-1B visas are allocated as follows:
- 65,000 for any qualifying H-1B worker, including up to 6,800 for citizens of Singapore or Chile who are granted H-1B1 status based on free-trade agreements with those countries.
- 20,000 for workers who have earned a master's degree or higher from a US academic institution.
The limited availability of H-1B visas is known as the H-1B cap.
Certain H-1B petitions are exempt from the cap and may be filed at any time during the fiscal year. Exempt H-1B petitions include:
- Amendments, extensions, and transfers of existing H-1B status, where the worker has previously been counted against the cap.
- Petitions by:
- government research organizations;
- institutions of higher education;
- nonprofits related to institutions of higher education; and
- nonprofit research organizations.
The H-1B Visa Classification Toolkit provides resources to help employers gather information about a foreign worker employee and prepare and file an H-1B visa petition, as well as resources describing rights and obligations of employers that employ foreign workers in H-1B status. This Toolkit is also useful for evaluating issues related to the E-3 nonimmigrant visa classification (see Practice Note, The E-3 Nonimmigrant Visa Classification for Australian Treaty-Based Specialty Occupation Workers).