If the foreign worker is subject to the annual numerical limit, or H-1B cap, then the earliest start date is October 1st of that fiscal year. If the foreign worker is outside the United States then s/he must obtain an H-1B visa before s/he will be admitted to the United States in H-1B status. If… Read More
H-B1 Visa
What is the H-1B Cap?
There an annual numerical limit, or cap, of 65,000 H-1B visas each fiscal year. The first 20,000 H-1B petitions filed on behalf of foreign workers with a U.S. master’s degree or higher are exempt from this numerical cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education (or its… Read More
If the foreign worker owns the employer can s/he demonstrate an employer/employee relationship?
If a foreign worker own the employer s/he may be able to demonstrate that an employer/employee relationship exists if the control of the foreign worker’s work is exercised by a board of directors, preferred shareholders, investors or others.
Does the employer have to demonstrate an employer/employee relationship with the foreign worker?
Yes. There must be an employer/employee relationship between the U.S. employer and the foreign worker. Generally, the relationship is demonstrated by the fact that the U.S. employer may hire, pay, fire and supervise or otherwise control the foreign worker’s work.
Does the foreign worker’s bachelor’s degree have to be related to the ‘specialty occupation’?
Yes.
Does the foreign worker have to possess a bachelor’s degree?
Yes. The foreign worker may possess either a U.S. bachelor’s degree; a foreign bachelor’s degree (that is determined to be the equivalent to a U.S. degree); or demonstrate that s/he has education, specialized training, and/or progressively responsible experience that is equivalent to the completion of a U.S. bachelor’s or higher degree in the specialty occupation…. Read More
Does the position offered to the foreign worker have to be a ‘specialty occupation’?
Yes. In essence this means that either: a bachelor’s degree or higher degree or its equivalent is normally the minimum requirement for the particular position; the degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least… Read More
Does the Labor Condition Application (LCA) need to be filed before filing the H-1B petition?
Yes. The LCA must be certified by the Department of Labor. After certification, the LCA and is filed along with the H-1B petition with the USCIS.
How long is the Labor Condition Application (LCA) valid for after certification?
A LCA is valid for the period of validity requested by the U.S. employer. However, the period of validity cannot exceed 3 years.
How long does it take the Department of Labor to process a Labor Condition Application (LCA)?
The LCA is filed online and is certified within 7 business days of filing.