Subtitle: 
Foreign employees in specialty occupations can work in the United States under an H-1 visa.

If you want to hire employees with highly specialized knowledge from outside the country, one option is the H-1 visa.  The first step is submitting a petition to the United States Citizenship and Immigration Services (USCIS).  Once the petition is approved, the next step applying for a visa with the U.S. Department of State.  There are several kinds of visas, and applicants must determine which one is right for him or her.  This article outlines the steps an employer must take to obtain an H-1 visa, which allows foreign employees with specialized knowledge and at least a bachelor’s degree or foreign equivalent to work in the United States.  Examples of specialty occupations include architecture, engineering, mathematics, medicine, and accounting. 

The applicant’s employer must first file a labor condition application (LCA) (Form ETA 9035) with the United States Department of Labor (DOL).  The form must be completed and submitted online at http://www.lca.doleta.gov/eta_start.cfm?actiontype=register.  The DOL’s online system ordinarily determines within minutes whether the labor condition application has been approved.  By completing and signing the LCA, the employer is required to make several representations regarding the employer’s responsibilities, including the wages, working conditions, and benefits to be provided to the visa applicant.  In addition, the employer is required to make the LCA and supporting documentation available for public examination at its principal place of business.

Next, the employers must complete and submit a Form I-129 petition, along with two supplements, to the USCIS, as well as the required payment (currently ranges from $ 820 - $1,320, depending on the type of employer, plus a $500 fraud prevention and detection fee).  Form I-129 can be obtained from the USCIS website at http://www.uscis.gov/portal/site/uscis.  The Form I-129 petition must be submitted with: 

Important Tip It is important for employers to file the I-129 petition as soon as possible (but no more than 6 months prior to the date employment is scheduled to begin) to allow sufficient time for the government to process the application. Once the petition is approved, the employer is sent a Notice of Action, Form I-797, providing notification of petition approval.
  • A copy of the approved LCA;
  • Evidence showing that the proposed employment qualifies as a specialty occupation;
  • Evidence showing that the alien has the required degree by submitting either: (1) A copy of the person’s U.S. baccalaureate or higher degree as required by the specialty occupation; (2) A copy of a foreign degree and evidence that it is equivalent to the U.S. degree; or (3)   Evidence of education and experience that is equivalent to the required U.S. degree.
  • A copy of any required license or other official permission to practice the occupation in the State of intended employment; and
  • A copy of any written contract between the employer and the alien or a summary of the terms of the oral agreement under which the alien will be employed.

Once the Form I-129 petition is approved, prospective workers outside of the country generally must apply for a visa application with the U.S. Embassy or Consulate with jurisdiction over the applicant’s place of residence.  The following documentation is required for the visa application:

  • Form DS-156, which is filled out online.  A copy of the form can be accessed at https://evisaforms.state.gov/ds156.asp.  Form DS-156 is relatively straight-forward and contains basic questions regarding the applicant. (The application fee is currently $131)
  • Supplemental form DS-157 must be submitted by certain applicants:  males between 16-45 years of age; and applicants age 16 and over from states deemed by the U.S. to be sponsors of terrorism (currently Cuba, Syria, Sudan, and Iran).  A copy of DS-157 can be accessed at http://www.state.gov/documents/organization/79964.pdf.  Form DS-157 is also relatively straight-forward and contains questions regarding countries the applicant has visited, previous employers, social and charitable organizations, military training and background, and educational background.
  • A passport valid for travel to the United States with a validity date of at elast six months beyond the applicant’s intended period of stay in the United States.
  • One 2x2 inch photograph.  The government has very specific guidelines for the photograph requirement, which can be accessed here: http://travel.state.gov/visa/temp/info/info_1287.html.  

In addition, as part of the visa application process, applicants from age 14 through 79 must be interviewed at the by the embassy or consulate (unless requested, persons 13 or younger and 80 or older are not required to participate in an interview).

If these requirements are met, the applicant will receive a visa, along with the right to request entry into the United States.
 

Additional Information
Important Tip: 
It is important for employers to file the I-129 petition as soon as possible (but no more than 6 months prior to the date employment is scheduled to begin) to allow sufficient time for the government to process the application. Once the petition is approved, the employer is sent a Notice of Action, Form I-797, providing notification of petition approval.
Marketing copy: 
obtaining a visa