H-1B Professional Nonimmigrant Worker

The H-1B categories apply to aliens coming temporarily to perform services in a specialty occupation, or as a fashion model of distinguished merit and ability. H-1B nonimmigrant workers include professional workers with at least a bachelor’s degree (or its equivalent work experience) who seek entry into the United States to work in a specialty occupation. Specialty occupation is defined as requiring a (1) theoretical and practical application of a body of highly specialized knowledge and (2) attainment of a bachelor’s or higher degree in the specific specialty as a minimum for entry into the occupation.

H-1B1 Professional Workers

The first step to hiring most H-1B workers from outside the U.S. is for the employer to file a labor condition application (LCA) with the Department of Labor (DOL). Then the employer is required to file the LCA approval notice with the I-129 petition. For specific procedures on filing, please visit the Department of Labor’s Employment and Training Administration.

Some terms and conditions of the H-1B classification are as follows:

  • Work authorization for H-1B foreign specialty workers is employer-specific (i.e. limited to employment with the approved employer/petitioner).
  • A change of employer requires a new H-1B petition; under some circumstances, a nonimmigrant who was previously issued an H1-B visa or provided H1-B nonimmigrant status may begin working for a new H1-B employer as soon as the new employer files a “nonfrivolous” H1-B petition for the nonimmigrant.
  • Multiple employers require multiple H-1B petitions.
  • The employer is responsible for return transportation costs for an employee terminated prior to the end of the approved period of employment.
  • H-1B foreign specialty workers are not required to maintain foreign residence and may seek permanent residence in the U.S.

Dependents (spouses and unmarried children under 21 years of age) of H-1B workers are entitled to H-4 status with the same restrictions as the principal. Dependents may not be employed under the H-4 classification; however, they are permitted to study.

Note:  In early 2010, the USCIS released the Neufeld Memo, which dramatically changed the way H-1B cases are documented by employers and processed by the USCIS.  Employers must now document the employer-employee relationship in greater detail.  This especially impacts information technology companies that place their employees at third-party client sites.  To watch a helpful video on the changes in the H-1B program and how to adapt to them, watch this video.

H-1B2 Research and Development Project

The H-1B2 category applies to an alien coming temporarily to perform services of an exceptional nature relating to a cooperative research and development project administered by the Department of Defense.

Note: this category does not require an LCA.

H-1B3 Fashion Model

The H-1B3 category applies to a fashion model who is nationally or internationally recognized for achievements, to be employed in a position requiring someone of distinguished merit and ability.