Steps Employers Must Take to Hire an H-1B Worker: Overview

The U.S. employer must take several preliminary steps before putting an H-1B worker on the payroll.

By , Attorney (Capital University Law School)

The H-1B visa category is a useful one for many U.S. employers, allowing them to hire noncitizens to work in the United States in either a "specialty occupation," for a Department of Defense-administered project, or as a fashion model of distinguished merit and ability.

Most H-1B employers and workers fall into the "specialty occupation" category, meaning the usual job requirement includes a U.S. bachelor's degree or the equivalent in a specific field and where the foreign national employee has a relevant degree or the equivalent. Examples of jobs that qualify include accountants, engineers, information technology professionals, pharmacists, scientists, and teachers. For additional examples, see Types of Jobs Most Likely to Qualify for an H-1B Visa.

If the H-1B sounds like a useful one for your business to explore in its hiring plans, keep reading for basic procedures.

Annual Limits on Visas Complicate the Application Process

There is a cap of 85,000 H-1B visas for first-time H-1B visa applicants each federal fiscal year, which runs October 1 to September 30. See H-1B Visa to the U.S.: Who Qualifies? for information on the H-1B cap and how it affects when you can file an H-1B petition. This creates various complications in the application process, as mentioned below.

Basic Steps Toward Obtaining an H-1B Visa or Status for a Worker

The employer must take several preliminary steps before putting an H-1B worker on the payroll. They are:

  1. Prepare a detailed job description that includes the minimum education and experience requirements.
  2. Review each prospective worker's qualifications to make sure they have a relevant bachelor's degree or the equivalent combined education and experience.
  3. Determine the prevailing wage. The employer must pay the higher of the "actual wage" (wage paid to other workers in the same job) or the "prevailing wage" (statistical average wage paid to workers in the same geographic area). For more on the wage requirement, see H-1B Employers: What Wage Must You Pay?.
  4. File a "Labor Condition Application" ("LCA") with the U.S. Department of Labor ("DOL") to verify that the proposed employment of the H-1B worker meets certain wage and working condition requirements. The DOL usually sends the certified LCA by e-mail within one week of when you file it using the online FLAG portal.
  5. If the petition is subject to the cap, register for the annual H-1B lottery with U.S. Citizenship and Immigration Services (USCIS), to see whether you'll be chosen from the many applicants (demand for H-1B visas always exceeds the supply) and allowed to continue with the process.
  6. If cap-exempt or chosen in the lottery, submit a petition on USCIS Form I-129, with supporting documents and filing fees, to U.S. Citizenship and Immigration Services (USCIS).

For a fuller explanation of these steps, see How Long It Takes to Get an H-1B Visa Petition Approved.

When the H-1B Employee Can Start Work

There are different scenarios for when the new employee may start working, depending upon whether they're in the United States or abroad.

Someone who is in the U.S. working for another employer in H-1B status might be authorized to start working for the new employer once it has received USCIS Form I-797 Notice of Action to confirm that the I-129 petition is pending. In other cases, the employer might need to wait for USCIS to approve the petition before the new employee begins working.

A prospective employee who is outside the U.S. will take the approval notice (also issued on USCIS Form I-797 Notice of Action) and a copy of the H-1B petition submitted to USCIS to the U.S. Consulate or Embassy in their home country to apply for an H-1B visa.

The visa application process and timing can vary slightly among different consulates and embassies. To check the protocol, select the particular location at https://www.usembassy.gov/.

After having received the visa, the worker may travel to the U.S. and start the job.

Getting Legal Help

This information is intended merely as an introduction to the H-1B visa. See the additional articles referenced above and consult immigration counsel for further guidance.

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