H-1B Visa and Status Requirements

Although H-1B visa applications impose a number of requirements, these conditions generally
fall into two broad categories—requirements about the type of work the employee will be doing
(the specialty occupation requirement), and other requirements concerning the employer.

Contents [hide]

 1 Employee Specialty Occupation H-1B Requirements

 2 Other Employer H-1B Requirements
 3 LCA Requirement
 4 Filing the Labor Condition Application (LCA)
 5 Requirements of the LCA Certification
 6 Third-Party Agreements
 7 Consultations Available!

Employee Specialty Occupation H-1B Requirements

Eligibility for H-1B status requires that the employment position qualify as a “specialty
occupation.” As a general matter, employment that requires a bachelor’s degree will qualify as a
specialty occupation, as will other employment that requires specialized knowledge or
experience that is the equivalent of a bachelor’s degree. Professional positions that require
graduate work or certification (e.g., doctors, lawyers, teachers, etc.) generally meet the specialty
occupation requirement, with an important caveat—the H-1B alien must have any U.S. State
license that will be required in the jurisdiction where he or she will work.

In addition to establishing that the employment position qualifies as a specialty occupation,

employers must also demonstrate that the H-1B alien is suitably qualified for that employment.
Employers may meet this requirement by providing documentation that the H-1B alien has the
type of degree required for the specialty occupation. Typically, the degree must be at least a
bachelor’s degree from an accredited U.S. institution or the foreign equivalent of such a degree.
In the absence of a degree, it may be possible to meet this requirement by providing evidence of
specialized training/experience or other education.

Other Employer H-1B Requirements

First, in order to obtain an H-1B visa, the employer must be a “U.S. employer,” or an employer
with an IRS tax identification number. This broad requirement allows for many different
business structures: corporations, partnerships, individuals, privately held companies, and the
like.

Second, the employer must be entering an employer-employee relationship with the H-1B alien,
as opposed to an independent contractor relationship—in an employer-employee relationship, the
employer retains control over the employee’s work, including the ability to supervise or fire that
employee.
LCA Requirement

Both the Department of Labor (“DOL”) and the United States Citizenship & Immigration
Service (“USCIS”) require employers to verify other specific information about the nature of the
employment being proposed. DOL requires that employers file a labor condition application
(“LCA”) prior to submitting the H-1B visa application itself. The LCA requires employers to
report certain general data about its total number of employees, as well as data about the H-1B
alien’s future job (job description, salary, and duties).

Filing the Labor Condition Application (LCA)

In the LCA, the employer must also verify that the H-1B alien will be paid a wage at least as
high as the wage paid to other employees in similar positions in the same geographic region—an
assertion that the employee will be paid the “prevailing wage.” Finally, the employer must make
several other affirmations about labor conditions: 1) that the H-1B alien’s employment will not
create adverse working conditions for existing employees; and 2) that there is not currently a
labor strike or lockout. DOL may initiate an investigation if there is reasonable cause to suspect
that an employer has failed to comply with DOL regulations; for this reason, employers should
preserve the documentation they rely on to generate their statements in the LCA.

Requirements of the LCA Certification

Employers must file the LCA in the jurisdiction where the employee will actually perform work,
regardless of where the employer is headquartered or does business. For employees who will be
working in multiple jurisdictions, either simultaneously or in succession, there may be additional
requirements; although the employer should always file the LCA in the jurisdiction where the H-
1B alien will first work, employers may be required to list other expected work locations, as
well. If the alien already has an H-1B visa with a different employer, a new employer must
nevertheless file a new LCA before the alien begins the new position. With the exception of H-
1B visas in the Chile/Singapore programs, the LCA permits employers to specify employment
periods of up to three years; new LCA requirements may be triggered once the specified
employment period has lapsed.

USCIS is the entity that reviews the application materials and makes a determination that the H-
1B conditions have been satisfied. Employers should not allow an H-1B alien to begin working
prior to receiving an approval notice from the USCIS.

Third-Party Agreements

Employers submitting H-1B visa applications for computer professionals may face specific
requirements because these employees tend to perform work at third-party locations pursuant to
contracts between the employer and its customer. In this situation, USCIS may require that an
employer submit these third-party agreements to establish that the petitioner (employer), and not
the customer, is the H-1B alien’s actual employer. Failure to submit the relevant third-party
agreements may trigger a Notice of Action from USCIS, delaying the approval process.
Consultations Available!

KPPB Law has experienced immigration attorneys who can help you file your H-1B petition and
manage the entirety of your case to ensure the best possible results. We offer our clients
consultations at our offices or by phone. To discuss your case or to set up a consultation – call
our office or send our immigration attorneys a message online. We look forward to working with
you!

How to File an H-1B Visa Application

Filing an H-1B petition correctly is essential as errors on certain parts of the application can
result in immediate denial of the application. The number of H-1B applicants has grown
exponentially in recent years while the “H1B Cap” has remained the same. To read more about
the H-1B cap in recent years please read our articles on the 2013 & 2014 H-1B Cap.

Contents [hide]

 1 Filing a Petition
 2 Cap Exempt Workers
 3 Where to Mail Petitions
 4 We Are Ready To Assist You

Filing a Petition

To initiate a filing of an H-1B petition, after filing the LCA with the Department of Labor, an
employer files the H-1B petition with USCIS on Form I-129.Employers should complete the
petition in black ink, while all original signatures should appear in blue ink. Ambiguous,
missing, or incomplete answers can delay the approval process; employers should ensure that
questions have been answered accurately and consistently throughout the petition, and that all
necessary supporting documents have been attached.

Cap Exempt Workers

Part C of Form I-129 asks employers a series of questions that determine whether a petitioner is
“cap exempt.” Employers who are cap exempt include: institutions of higher education, certain
non-profit organizations, and others who will be employing the H-1B alien to perform
employment duties at other cap exempt institutions. Cap status is particularly important to
USCIS processing, so employers should take care to establish the correct cap status in their
petitions. Employers submitting cap exempt petitions should use red ink to label the top of Form
I-129 with the word “Exempt.” Employers submitting cap petitions should also label the Form I-
129 in red ink, using the following codes:

 Regular Cap – petitions subject to the regular 65,000 cap, with the exception of Chile/Singapore
cap petitions.
 C/S Cap – Chile/Singapore H-1B1 petitions.
  U.S. Master’s – petitions subject to the 20,000 exemption for employees with a U.S. master’s
degree or higher.

Employers should not submit more than one Form I-129 for any individual employee—doing so
may result in automatic denial of those petitions. When using a single mailing to submit petitions
for multiple employees, employers should place each individual petition (along with supporting
documents) into its own envelope.

Where to Mail Petitions

There are two USCIS service centers (Vermont and California) that process H-1B petitions;
employers file at one of these two locations depending, among other things, on whether the
petition is “cap exempt” or “non-cap exempt”. USCIS specifies appropriate filing locations on
their website at http://www.uscis.gov/i-129-addresses.

Depending on the method of delivery, additional requirements may apply. For deliveries by U.S.
Postal Service, mailings initially go to a P.O. Box; however, USCIS considers petitions filed
when they arrive at USCIS. For this reason, employers using the U.S. Postal Service should
allow time for USCIS to retrieve mailings from the P.O. Box (usually done several times per
day). For deliveries by bonded private couriers (FedEx, UPS, DHL, etc.), USCIS accepts
deliveries between 6:00AM and 5:00PM local time. USCIS will not accept hand deliveries from
employers or deliveries from non-bonded private couriers.

We Are Ready To Assist You

Interested in filing an H-1B visa petition? Contact us today. We have extensive experience in
filing H-1B visas and know just how to help you. Call us at 703-594-4040 or contact us online
for a consultation!

H-1B Visa Frequently Asked Questions

Filing an H-1B visa application can be a complicated process if proper directions are not
provided. The competitiveness of the H-1B cap makes it important to get all of the details
correct. This section includes answers to some of the most frequently asked questions regarding
the process of filing an H-1B petition.

Contents [hide]

 1 How much does it cost to submit an H-1B petition?

 2 How long does it take for an H-1B petition to be approved?
 3 Is expedited processing available?
 4 Is there a limit on the number of H-1B visas available?
 5 Can the alien come to the U.S. on another visa (visitor visa or visa-waiver) while the H-1B
petition is under review?
 6 Are there special rules for employment agencies and/or aliens who will work at multiple sites?
  7 What are the rules for an H-1B’s family and dependents?
 8 What if I want to terminate employment of an H-1B alien I have sponsored?
 9 Interested in pursuing and H-1B visa and have additional questions?

How much does it cost to submit an H-1B petition?

The charges vary based on employer size. For employers with fewer than 25 employees, there is
a USCIS charge of $2,000. For employers with 25 or more employees, that charge is $2,750. The
USCIS also charges a filing fee of $325 for each petition plus a $500 Fraud Prevention and
Detection Fee. In addition to USCIS charges, there is also a cost associated with consular visa
processing—typically this cost is approximately $100 in local currency.

How long does it take for an H-1B petition to be approved?

The average processing time is between three and six months depending on volume at the
relevant USCIS location.

Is expedited processing available?

Yes. USCIS allows Premium Processing for an additional fee of $1,225. Premium Processing
reduces the processing time to fifteen days. Within that time period, USCIS will reach its
decision or determine that it needs additional information from the petitioner.

Is there a limit on the number of H-1B visas available?

65,000 H-1B visas are available each year. 20,000 additional H-1B visas are available for aliens
who have at least a master’s degree from a U.S. institution with other in-demand skills and
knowledge. When these quotas have been met, USCIS announces a cutoff date. For petitions that
have already been filed before the cutoff date, USCIS holds these submissions for review until
the following October. USCIS will return—without review—all petitions submitted after the
cutoff date.

Can the alien come to the U.S. on another visa (visitor visa or visa-waiver) while the H-1B
petition is under review?

Unless absolutely necessary, aliens should not come to the U.S. on another visa while the H-1B
petition is under review. Doing so may lead to accusations of visa fraud, particularly if the alien
engages in any work while in the U.S.

Are there special rules for employment agencies and/or aliens who will work at multiple
sites?

Employment agencies and contractors may sponsor H-1B aliens, with an important caveat—the
sponsor must pay the alien the prevailing wage, regardless of whether or not the alien is actually
placed for employment. If an alien will be working in multiple locations, an employer must file
an LCA in each jurisdiction where work will actually occur.

What are the rules for an H-1B’s family and dependents?

Separate visa rules apply to spouses, children, and dependents of H-1B aliens, who receive H-4
visas. H-4 visas permit study, but not employment, in the U.S. If an H-4 visa-holder wishes to
work in the U.S., he or she must procure his or her own work visa. To read more about H-4 visa
requirements visit our section on H-4 visas.

What if I want to terminate employment of an H-1B alien I have sponsored?

It is possible to terminate employment of an H-1B alien before the employment period has
lapsed. In this instance, the employer must pay the reasonable costs for the H-1B alien to return
to his or her home country. If the H-1B alien has traveled to the U.S. with any family or
dependents, their return transportation costs are usually not assignable to the employer.

Interested in pursuing and H-1B visa and have additional questions?

If you are interested in filing an H1B visa petition, contact KPPB Law today. Our immigration
department has processed over 1,000+ H-1B visas and would love to help you. Call us at 703-
594-4040 or contact us online for a consultation.

H1B Visa “Request for Evidence” (RFE)

USCIS makes an inquiry called a request for evidence, or RFE, when they require additional
evidence to make a decision on a H1B case. You will receive an RFE in the mail or can check
online for an outstanding RFE by using the case status tool. The USCIS must have proof of a
valid employer-employee relationship. An RFE can be for information about either the
beneficiary or the petitioner, or both.

After receiving an RFE, you have up to 90 days to submit documents proving your case. Be sure
that you answer all inquiries completely and thoroughly. If not, your case could be delayed even
further, or you may inadvertently submit information that could jeopardize the outcome of your
case. USCIS has the ability to be subjective therefore, it is not recommended to respond to an
RFE without legal guidance.

Contents [hide]

 1 Validation Instrument for Business Enterprise (VIBE)

 2 Specialty Occupations
 3 Non-Typical Industries
 4 Potential Problems with Beneficiaries’ Degrees
 5 Employer-Employee Relationship Questions
 6 Extensions and Changes of Status Requests
  7 Important Details to Consider
 8 Consider Professional Legal Assistance

Validation Instrument for Business Enterprise (VIBE)

The Validation Instrument for Business Enterprise, shortened to VIBE, is a tool used by the
USCIS to confirm information about petitioning employers using available information. If there
has been a recent address change, for instance, there may be a discrepancy between the H1B
petition and the information obtained from VIBE, which could cause you to receive a RFE
asking for information such as a lease agreement, recent financial statements or wage reports, or
the petitioning employer’s Tax ID number.

Specialty Occupations

In order to be granted an H1B visa, an employee must be qualified to work in a “specialty

occupation.” Typically, a specialty occupation requires a bachelor’s degree at a minimum, and
the job may require a degree. There are other requirements that may apply. The adjudicating
officer must use his or her own judgment to approve or disapprove a specialty occupation. In
order to make a judgment, the adjudicating officer may wish to see a detailed job description of
the specialty occupation, the work history of the beneficiary, common practices in the industry,
or a proposed salary, among other paperwork he or she could request. Review our page, H-1B
Visa Status and Requirements for full information on specialty occupations.

Non-Typical Industries

Sometimes, a petitioner may be a business hiring a foreign worker whose job skills that are not
typically associated with the petitioner’s field of business. Typically, the petitioner in this case
would be a small business. An example of this potential challenge would be a petition for an
H1B visa for a financial planner who will work for a construction business. The USCIS may
suspect that the beneficiary will not be placed in a specialty occupation but rather in a position
that requires less of his or her skills, and that the beneficiary will find other work after arriving in
the U.S. If this happens, the petitioner must show that the beneficiary will be working in a
specialty occupation.

Potential Problems with Beneficiaries’ Degrees

Sometimes, the beneficiary will possess a bachelor’s degree in a different field of study than the
proposed occupation, leading to a RFE. When this happens, the petitioner must show how the
beneficiary’s degree is related to the position. Another potential problem can occur if the
beneficiary does not possess a bachelor’s degree in the United States, or may not even have a
bachelor’s degree at all, because he or she attended college in a different country. To satisfy the
RFE, he or she must submit documentation showing a foreign degree equivalent to a bachelor’s
degree from the United States in his or her field. Alternately, a beneficiary must sometimes show
college evaluations or letters from previous employers to document work experience for a RFE.
Employer-Employee Relationship Questions

In order for an H1B petition to be approved, there must be proof of an existing employer-
employee relationship. If the beneficiary will be working off-site, this relationship can be
difficult for the USCIS to determine without more information, and an RFE may request
information to establish the employer’s control and supervision of the employee. The employee
must also prove that the specialty occupation can be performed off-site at the particular job
location and may be asked to show the chain of command for the employer’s organization.

Extensions and Changes of Status Requests

A worker must show proof that he or she has maintained status as an employee working in a
specialty occupation by showing pay statements if he or she wishes to receive an extension for an
H1B or change his or her immigration status.

Important Details to Consider

As previously state, it is unwise to move forward with an RFE response without legal assistance.
However, you should always keep the following considerations in mind when you are answering
an RFE:

 Read everything fully. If there are any words or phrases you do not understand because of the
legal jargon, consult with your immigration attorney for clarification.
 Do not panic or make rash decisions. Instead, use all available resources from the USCIS to learn
more about your particular case.
 Get it right the first time. Answer every question fully and do not submit a notice that has only
partially been answered. You will not usually receive a second request for information if you
have missed anything.
 Double check that you have included all documents requested, and double check to make sure
you wrote the correct mailing address on the envelope.
 Keep the deadline in mind and be sure to submit your response before the deadline passes.

Consider Professional Legal Assistance

If you or an employee has received a Request for Evidence (RFE), KPPB Law is here to help.
Our attorneys have extensive experience crafting RFE responses to USCIS. To learn more about
how we can help you, call our office or, send us a description of your case online. Entrust your
case to us so that we can help secure the best results possible for your case.