Obtaining an H-1B Visa for Your Foreign Employee

As a lawyer, I can advise you on the requirements for obtaining an H-1B visa for your foreign employee. The H-1B visa is a type of non-immigrant visa that allows U.S. employers to temporarily employ foreign workers in specialty occupations requiring theoretical or technical expertise in specialized fields.

Requirements for the H-1B Visa

To qualify for an H-1B visa, the foreign employee must meet the following requirements:

• Specialty Occupation: The job that the foreign employee will be filling must qualify as a specialty occupation. This means that the position must require theoretical and practical application of a body of specialized knowledge, and a bachelor's degree (or higher) in the specific specialty or its equivalent.
• Labor Condition Application (LCA): The employer must obtain an approved LCA from the Department of Labor (DOL) for the intended H-1B worker. The LCA attests that the employer will pay the prevailing wage for the occupation in the geographic area of employment and that employment of the H-1B worker will not adversely affect the working conditions of similarly employed U.S. workers.
• Employer-Employee Relationship: The employer must demonstrate that a valid employer-employee relationship exists between the employer and the foreign employee. This means that the employer has the right to control the work performed by the employee and that the employer will be the one paying the employee.
• Degree Requirement: The foreign employee must possess a bachelor's degree (or higher) in the specific specialty occupation for which he or she is being hired. If the foreign employee does not have a degree, the employer may use experience as a substitute for education.
• Numerical Limitations: There are numerical limitations on the number of H-1B visas that can be issued each year. For fiscal year 2021, the cap is set at 85,000, with 65,000 visas reserved for individuals with a bachelor's degree or its equivalent, and an additional 20,000 set aside for individuals with a master's degree or higher from a U.S. institution of higher education.
• Visa Fees: The employer is responsible for paying the visa fees associated with obtaining an H-1B visa for the foreign employee.

It is important to note that there may be additional requirements or exceptions to these requirements depending on the specific situation. It is recommended that you consult with an experienced immigration attorney for further guidance and to ensure that all requirements and deadlines are met.