Requirements for H-1B, H-2A, H-2B and H-3 Visas
H-1B Specialty Visa Introduction
The H-1B visa authorizes employment for a foreign national worker in a specialty occupation. This involves filing an H-1B petition by the employer on behalf of the worker. Generally, the worker’s H-1B status can be extended up to six (6) years. The basic requirements for an H-1B visa or status are: 1) the specialty occupation or profession requires a bachelor's degree or equivalent work experience in a specialist field; 2) the foreign national worker has attained that degree or equivalent work experience; 3) the employer offers a prevailing or actual wage salary (whichever is higher); and 4) the Department of Labor must approve the Labor Condition Attestation (LCA) prior to H-1B approval.
Identifying the job and beneficiary's requirements
The first step when filing an H-1B petition is to identify the position being offered and determine whether it is a specialty occupation. The beneficiary must have the requirements to perform that specialty occupation, such as a U.S. bachelor's degree or an equivalent foreign degree, work experience, or any appropriate licenses.
Paying the Prevailing or Actual Wage (whichever is higher)
The employer must offer and pay the beneficiary the prevailing wage, meaning a formulated salary within the wage of similarly situated workers in the area of intended employment, or the actual wage paid to other employed workers possessing similar experience and qualifications.
Filing a Labor Condition Attestation Application with the DOL
The United States Citizenship & Immigration Services (USCIS) requires that employers file an LCA directly with the Department of Labor (DOL). The LCA requires that the employer attests to the following: 1) the company will pay the beneficiary the same as other similar employees; 2) such employment will not adversely affect the working conditions of other similar employees in the area; 3) there is no strike or labor dispute at the place of employment; and 4) provided notice of filing to bargaining representative, or if no bargaining representative, posted two conspicuous notices at the place of employment containing specific job information including job title and salary. The employer must make available at its offices for public examination a copy of the LCA and supporting documentation regarding the H-1B employee and other similarly situated employees.
Filing the H-1B Petition with the BCIS
Once the DOL approves the LCA, then the company will need to file the H-1B petition with the USCIS. If approved, the USCIS will issue an approval notice as evidence of the beneficiary's H-1B status.
Getting an H-1B visa for travel
Once the foreign national employee obtains H-1B status in the United States he or she will need to acquire an H-1B visa in his/her passport for travel out of, and return to, the United States.
The beneficiary's spouse and children can obtain legal immigration status as dependents of his H-1B status (H-4 status). They are not permitted to work, but may attend school.
Visa Number Availability
Since 2004, H-1B visa numbers have been reached after the start of the fiscal year resulting in many applicants having to wait until the next fiscal year before they can work on an H-1B visa. Extra visa numbers have been allotted to applicants with a Master’s Degree or higher that was acquired from U.S. educational institution. At any rate, it is important that a lawyer review the details of the proposed employment to determine whether the worker will be subject to the H-1B visa cap.
H-1B Visas for Foreign Nationals from Chile or Singapore
Special H-1 worker visas are also available foreign nationals from Chile or Singapore who will be working in a "specialty occupation."
- "Chavez and Valko, LLP has been retained by my employer (A Fortune 500 company and a public company traded on NYSE) to handle immigration cases for its employees. Immigration attorney Martin Valko and paralegal Anya assisted with my H1b application. They also prepared my visa application at a U.S. Consulate in China. During the process I asked tons of questions and numerous emails had been exchanged. Each of them was answered promptly with satisfaction. Detailed instructions were given during the H1b application forms preparation process. My new H1b was submitted via premium processing and it was approved within 1 week. Before I went abroad for the H1b visa interview, I was informed of every detail of a visa interview process overseas. As a result, my visa interview abroad went through smoothly and successfully. Recently I was just informed by the USCIS that my new H1b expiration date has been extended for another 1.5 years. This was the result of a request from attorney Valko to the USCIS for correcting a mistake in calculating my H1b expiration date."
- Eric W. in California, employee of a Fortune 500 company ( H-1B and Portability Provision § 106(c) of AC21 based on an approved I-140 Petition).
- "Great experience working with Chavez and Valko on H1B. I work for a nationwide investment management firm and I worked with Martin Valko and his team on my H1B visa. They are very knowledgeable and I am very satisfied. I plan to use their services for my future citizenship case and any other family related immigration case."
- D.R., New York, NY ( Employee of a Global Investment Company; H-1B Petition with Nunc Pro Tunc Extension Request, and H-1B Visa)
- "Mr. Valko and his team did an excellent job with my H-1B extension. They went above and beyond my expectations. My case required the full attention from Mr. Valko and his team given that I had very little time left under my previous H-1B visa. They submitted my LCA in a record time and provided follow up information to the USCIS within minutes of their request. Mr. Valko even offered to use some of his personal time to help me with the timely delivery of my H-1B petition. My H-1B extension was granted within the premium processing period. I would like to thank Mr. Valko for his deep interest in my case. I highly recommend the firm Chavez and Valko and look forward to working with them in the future!"
- Mynor G., Dallas, TX ( H-1B Employer Porting under AC21 with a Nunc Pro Tunc extension request)
- "Chavez & Valko renewed my H-1B for me when I switched employers recently. Everything was done very efficiently, quickly and knowledgeably. I intend on using them in the future and recommend them to others. They know the law as well as the practical side of working with immigration. I've used other attorneys in the past and this firm did a far superior job than others, and I felt like a had somebody advocating on my behalf through the entire process."
- L. D., Dallas, TX (( H-1B Employer Porting under AC21)
- "Dear Mr. Valko,
I would like to thank you for your handling of my H-1B specialty occupation work visa petition last year. The Chavez and Valko law firm's attention to detail and quick communication turnaround was exemplary. I wish all attorneys' services were this good (not just immigration J). This is especially pertinent because for someone like me - a client with minimal awareness of quickly changing immigration regulations and laws, it's tough to keep up while staying on top of my full time job. I had some follow up queries many months after completion of my service obligation with them, and you personally replied on the same day - I really appreciated your excellent comprehensive reply and so will other people. You are the specialists who know what they are doing, and I was very thankful for my company (a Fortune 500 company) to choose Chavez & Valko to represent me and the company itself. I would highly recommend immigration lawyers from Chavez & Valko, LLP to anyone looking for their immigration service solution."
- M. K., Dallas, TX ( H-1B Employer Porting and H-4 application)
H-2A and H-2B Visas for Temporary Workers and H-3 Visas for Trainees
The H-2A (agricultural) or H-2B visa is for a person coming to the United States to perform temporary services or labor. The job and the employer's need for the duties to be performed must be temporary. Thus, the need must be for one year or less and can be a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need. The applicant must not be displacing U.S. workers and the employment cannot adversely affect the wages and working conditions of U.S. workers.
Admission is for no more than one year. Extensions may be granted for no more than 12 months and for a maximum of 3 years. However, extensions are given only in extraordinary circumstances and a new labor certification if required each time. After an applicant has spent 3 years in the U.S., re-admittance is not permitted until the person has resided and has been physically present outside the U.S. for the immediately prior 6 months.
The Secretary of Department of Homeland Security, in consultation with the Secretary of State, had identified 39 countries whose nationals are eligible to participate in the H-2A and H-2B programs for the coming year. The Effective date is January 18, 2010, and shall be without effect at the end of one year after January 18, 2010.
Nationals of the following countries are eligible to participate in the H-2A and H-2 B program:
Argentina, Australia, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Ethiopia, Guatemala, Honduras, Indonesia, Ireland, Israel, Jamaica, Japan, Lithuania, Mexico, Moldova, the Netherlands, Nicaragua, New Zealand, Norway, Peru, Philippines, Poland, Romania, Serbia, Slovakia, South Africa, South Korea, Turkey, Ukraine, United Kingdom, and Uruguay.
The H-3 visa is for a temporary worker invited to a program to receive training other than graduate medical training. This visa must not be used primarily to produce productive employment.
To learn more from clients who we have helped obtain H-1B, H-2A, H-2B and H-3 Visas, please visit our testimonials page.