H-1B Petitions

The H-1B is a temporary working visa for foreign nationals who are members of a “specialty occupation.” The Citizenship and immigration Service (CIS) defines a “Specialty Occupation” as an occupation where: 1) the prospective employee has at least a Bachelor’s degree or equivalent; and, 2) is working in a field that requires a minimum of a Bachelor’s degree or its equivalent.

Prior to filing an H-1 petition with the CIS, the employer must obtain an approved Labor Condition Application (LCA) from the United States Department of Labor (DOL). The LCA requires the employer to certify that it will pay the H-1B employee the “required wage rate,” which is either the greater of the “prevailing wage” or the employer’s “actual wage” for the position. Federal law also requires an employer who files an LCA to comply with complex posting and record keeping requirements.

The H-1B can be approved for an initial period of three years, and can be extended for an additional three years, for a general maximum of six years. There are however circumstances where an H-1B visa can be extended beyond six years if the foreign national has had a Labor Certification application pending for at least one year. In those circumstances, the H-1B visa is extended in one year increments until he or she obtains U.S. permanent residency.

Even though an H-1B is a non immigrant visa, a person holding an H-1B is allowed to have “dual-intent” i.e. the intent to seek permanent resident status in the U.S.

Please note that the above listed information is not intended to be a substitute for specific legal advice regarding an individual matter. We strongly encourage you to work closely with qualified legal counsel when pursuing any immigration benefits. If we can be of further assistance to you, please contact our office via phone at (408) 567-9445 or via email at info@psimmlaw.com