What is the process for obtaining an H-1B visa for a non-US citizen employee?
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As a lawyer, I can provide legal advice on the process for obtaining an H-1B visa for a non-US citizen employee.
The H-1B visa is a nonimmigrant visa that allows US employers to employ foreign workers in specialty occupations that require a specific skill set or expertise. The visa is valid for an initial period of up to three years, with the possibility of extension for up to six years.
Requirements for Obtaining an H-1B Visa
To obtain an H-1B visa for a non-US citizen employee, the US employer must first file a petition with the United States Citizenship and Immigration Services (USCIS). The petition must include the following:
- The employer's information, including its name, address, and tax identification number.
- The employee's information, including their name, nationality, and qualifications.
- A job offer for a specialty occupation that requires at least a bachelor's degree or equivalent.
- A labor condition application (LCA) certified by the Department of Labor (DOL). The LCA ensures that the employer will pay the employee the prevailing wage for the particular job in the relevant geographic area.
- Evidence that the employee meets the qualifications for the job, such as educational degrees or work experience.
The USCIS reviews the petition and may request additional evidence before making a decision. If the petition is approved, the non-US citizen employee may apply for an H-1B visa at a US consulate or embassy abroad.
Annual Cap
It is important to note that the H-1B visa has an annual cap, which limits the number of visas that can be issued each year. The cap is set at 65,000 visas per year, with an additional 20,000 visas available for individuals with a master's degree or higher from a US institution. The visa lottery system is used to select the petitions for processing when the number of petitions exceed the annual cap.
Limitations and Exceptions
Furthermore, there are certain limitations and exceptions to the H-1B visa process, depending on the specific circumstances of the employer and employee. For example, certain institutions of higher education, nonprofit research organizations, and government research organizations are exempt from the annual cap. Additionally, spouses and dependent children of H-1B visa holders may be eligible for H-4 visas, which allow them to live in the US but do not allow them to work.
If you are an employer considering hiring a non-US citizen employee on an H-1B visa, it is important to consult with a licensed attorney who can provide tailored legal advice based on your specific circumstances.
