For Employers Using Foreign Labor In Specialty Occupations And As Fashion Models
What the Program Does
- The H-1B program allows an employer to temporarily employ a foreign worker in the U.S. on a nonimmigrant basis in a specialty occupation or as a fashion model of distinguished merit and ability. A specialty occupation requires the theoretical and practical application of a body of specialized knowledge and a bachelor's degree or the equivalent in the specific specialty (e.g., sciences, medicine and health care, education, biotechnology, and business specialties). Current laws limit the number of foreign workers who may be issued a visa or otherwise be provided H-1B status to 65,000.
- 20 CFR Part 655 Subpart H
- The H-1B and H-1B1 certification is valid for the period of employment indicated on the Labor Condition Application (LCA), specifically the Form ETA 9035E, for up to three years. E-3 certification is valid for a period of employment of up to two years.
- A foreign worker can be in H-1B status for a maximum continuous period of six years. After the H-1B expires, the foreign worker must remain outside the U.S. for one year before another H-1B petition can be approved. Certain foreign workers with labor certification applications or immigrant visa petitions in process for extended periods may stay in H-1B status beyond the normal six-year limitation, in one-year increments. For more information on extended stay possibilities, see the US Citizenship and Immigration Services (USCIS) web site. Extensions and renewals are allowed under the H-1B1 program; however adjustment of status to another nonimmigrant category or to legal permanent residency is not permitted. Therefore one year increment extensions, due to labor certification applications or immigrant visa petitions in process for extended periods, do not apply to H-1B1 visa holders. The Department of State issues E-3 visas for periods of employment up to two years. Although admission to the United States and extensions of stay are both limited to 2-year increments, E-3 visas can be renewed indefinitely.
- To hire a foreign worker on an H-1B, H-1B1, or E-3 visa, the job must be a professional position that requires, at a minimum, a bachelor's degree in the field of specialization. The occupation for which the H-1B, H-1B1, or E-3 classification is sought must also normally require a bachelor's degree as a minimum for entry into the occupation.
- Each employer seeking an H-1B, H-1B1, or E-3 nonimmigrant has several responsibilities
- The employer shall submit a completed Labor Condition Application (LCA) on Form ETA 9035E in the manner prescribed by the regulations. By completing and signing the LCA, the employer agrees to several attestations regarding an employer's responsibilities, including the wages, working conditions, and benefits to be provided to the nonimmigrant.
- The employer shall make the LCA and necessary supporting documentation available for public examination at the employer's principal place of business in the U.S. or the place of employment within one working day after the date on which the LCA is filed with ETA.
- The employer may then submit a copy of the approved LCA to U.S. Citizenship and Immigration Services (with a completed petition (USCIS Form I-129) requesting H-1B or H-1B1 classification. For the E-3 visa, employers do not need to submit a petition to USCIS. Instead, foreign workers: (1) apply for approval directly with a U.S. consulate; (2) pay a visa fee; and (3) are issued an I-94 entry/exit document at port of entry, to function as their work authorization.
- The employer shall not allow the nonimmigrant worker to begin work until USCIS grants the worker authorization to work in the U.S. for that employer or, in the case of a nonimmigrant who is already in H-1B status and is changing employment, to another employer until the new employer files a petition supported by a certified LCA.
- The employer shall maintain documentation to meet its burden of proof with respect to the validity of the statements made in its LCA and the accuracy of information provided, in the event that such statement or information is challenged. The employer shall also maintain such documentation at its principal place of business in the U.S. and shall make such documentation available to DOL for inspection and copying upon request.
- Effective January 1, 2004, the H-1B1 program became available, allowing employers to request foreign workers in the U.S. in a specialty occupation from Chile and Singapore. Current laws limit the number of foreign workers who may be issued an H-1B1 visa to 6,800. For more information regarding H-1B1 petitions, see the USCIS web site, or the Consular sections for Chile or Singapore.
For links to additional information, answers to frequently asked questions and complete details on processing labor certification requests under the H-2B Regulations, visit USDOL H-1B Labor Certification.