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What is the H-1B visa?

  • 3 mins read
The H-1B visa is a nonimmigrant visa that allows U.S. companies to temporarily employ foreign workers in specialty occupations. A specialty occupation is one that requires the application of specialized knowledge and the attainment of at least a bachelor’s degree or its equivalent. The fees an employer must pay include a training and processing fee of $750 if the employer has 25 or fewer employees. The fee for training and processing is $1,500 for employers with more than 25 employees. Additionally, all employers must pay an additional $500 for the Anti-Fraud Fee.  The number of H-1B visas issued each year are subject to an annual cap. The H-1B visas are capped at 65,000 during a fiscal year; an additional 20,000 are available to those individuals who received a master’s degree or higher from a U.S. institution of higher education. H-1B1 visas are limited to 1,400 nationals of Chile and 5,400 nationals of Singapore; E-3 visas are limited to 10,500 nationals of Australia.  H-1B, H-1B1, and E-3 workers are granted a few rights through their visa. The employer is required to provide the worker with a copy of the LCA. The employer is required to pay the worker at least the same wage rate as paid to other employees with similar experience and qualifications or the prevailing wage for the occupation around employment, whichever is higher. The employer must pay for non-productive time caused by the employer or by the worker’s lack of a license or permit. The employer must offer the worker fringe benefits on the same basis as its other employees. Also, the employer may not require the worker to pay a penalty for leaving employment prior to any agreed date.  All employers who employ an H-1B nonimmigrant worker must comply with the following: 
  • Maintain a Labor Condition Application (LCA) (Form ETA 9035 and/or ETA 9035E) with true and accurate information for each permanent work site. 
  • Pay the H-1B worker the “required wage rate” applicable to each permanent work site. 
  • Offer the H-1B worker the same working conditions and fringe benefits that are offered to similarly employed U.S. workers; 
  • Not employ an H-1B worker where there is a strike/lockout in progress in the worker’s occupation. 
  • Notify workers or their bargaining representative of the intent to employ an H-1B worker at any location where other workers are in the same occupational classification for which an H-1B worker is sought or placed. 
  • Provide a copy of the LCA to each H-1B worker. 
  • Not allow or require the H-1B worker to pay the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) (formerly the Immigration and Naturalization Service) petition filing fee. 
  • Not require the H-1B worker to pay any early cessation penalty. 
  • Not retaliate or discriminate against any worker who (a) discloses information that (the worker believes) shows a violation of this program or (b) cooperates with any proceeding concerning the employer’s compliance with this program. 
  • Provide the H-1B worker with payment for all work-related expenses; and 
  • Notify the USCIS of any changes in the H-1B nonimmigrant’s work status (e.g., wherever the Department of Labor requires a new LCA or when the work is terminated, whatever the reason is).