An H-1B classification may be granted to an alien who:

• Will perform services in a specialty occupation which requires theoretical and practical application of a body of highly specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation in the United States, and who is qualified to perform services in the specialty occupation because he or she has attained a baccalaureate or higher degree or its equivalent in the specialty occupation;
• Based on reciprocity, will perform services of an exceptional nature requiring exceptional merit and ability relating to a DOD cooperative research and development project or a coproduction project provided for under a Government-to-Government agreement administered by the Secretary of Defense;
• Will perform services in the field of fashion modeling and who is of distinguished merit and ability.

Specialty occupation means an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States. Current laws limit the number of foreign workers who may be issued a visa or otherwise be provided H-1B status to 65,000.

• A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
• The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
• The employer normally requires a degree or its equivalent for the position; or
• The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

The petitioner shall submit the following with an H-1B petition involving a specialty occupation:

• A certification from the Secretary of Labor that the petitioner has filed a labor condition application with the Secretary,
• A statement that it will comply with the terms of the labor condition application for the duration of the alien's authorized period of stay,
• Evidence that the alien qualifies to perform services in the specialty occupation as described above.

To qualify to perform services in a specialty occupation, the alien must meet one of the following criteria:

• Hold a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;
• Hold a foreign degree determined to be equivalent to a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;
• Hold an unrestricted state license, registration or certification which authorizes him or her to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or
• Have education , specialized training, and/or progressively responsible experience that is equivalent to completion of a United States baccalaureate or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

Equivalence to completion of a United States baccalaureate or higher degree means achievement of a level of knowledge, competence, and practice in the specialty occupation that has been determined to be equal to that of an individual who has a baccalaureate or higher degree in the specialty and shall be determined by one or more of the following:

• An evaluation from an official who has authority to grant college-level credit for training and/or experience in the specialty at an accredited college or university which has a program for granting such credit based on an individual's training and/or work experience;
• The results of recognized college-level equivalency examinations or special credit programs, such as the College Level Examination Program (CLEP), or Program on Noncollegiate Sponsored Instruction (PONSI);
• An evaluation of education by a reliable credentials evaluation service which specializes in evaluating foreign educational credentials;
• Evidence of certification or registration from a nationally-recognized professional association or society for the specialty that is known to grant certification or registration to persons in the occupational specialty who have achieved a certain level of competence in the specialty;
• A determination by the Service that the equivalent of the degree required by the specialty occupation has been acquired through a combination of education, specialized training, and/or work experience in areas related to the specialty and that the alien has achieved recognition of expertise in the specialty occupation as a result of such training and experience. For purposes of determining equivalency to a baccalaureate degree in the specialty, three years of specialized training and/or work experience must be demonstrated for each year of college-level training the alien lacks. For equivalence to an advanced (or Masters) degree, the alien must have a baccalaureate degree followed by at least five years of experience in the specialty. If required by a specialty, the alien must hold a Doctorate degree or its foreign equivalent. It must be clearly demonstrated that the alien's training and/or work experience included the theoretical and practical application of specialized knowledge required by the specialty occupation; that the alien's experience was gained while working with peers, supervisors, or subordinates who have a degree or its equivalent in the specialty occupation; and that the alien has recognition of expertise in the specialty evidenced by at least one type of documentation such as:
  • Recognition of expertise in the specialty occupation by at least two recognized authorities in the same specialty occupation;
  • Membership in a recognized foreign or United States association or society in the specialty occupation;
  • Published material by or about the alien in professional publications, trade journals , books, or major newspapers;
  • Licensure or registration to practice the specialty occupation in a foreign country; or
  • Achievements which a recognized authority has determined to be significant contributions to the field of t he specialty occupation.

The employer will be liable for the reasonable costs of return transportation of the alien abroad if the alien is dismissed from employment by the employer before the end of the period of authorized admission. If the beneficiary voluntarily terminates his or her employment prior to the expiration of the validity of the petition, the alien has not been dismissed. If the beneficiary believes that the employer has not complied with this provision, the beneficiary shall advise the Service Center which adjudicated the petition in writing. The complaint will be retained in the file relating to the petition. Within the context of this paragraph, the term "abroad" refers to the alien's last place of foreign residence. This provision applies to any employer whose offer of employment became the basis for an alien obtaining or continuing H-1B status.

An H-1B petition involving a specialty occupation shall be accompanied by:

• Documentation, certifications, affidavits, declarations, degrees, diplomas, writings, reviews, or any other required evidence sufficient to establish that the beneficiary is qualified to perform services in a specialty occupation as described above, and that the services the beneficiary is to perform are in a specialty occupation. The evidence shall conform to the following:
  • School records, diplomas, degrees, affidavits, declarations, contracts, and similar documentation submitted must reflect periods of attendance, courses of study, and similar pertinent data, be executed by the person in charge of the records of the educational or other institution, firm, or establishment where education or training was acquired.
  • Affidavits or declarations made under penalty of perjury submitted by present or former employers or recognized authorities certifying as to the recognition and expertise of the beneficiary s hall specifically describe the beneficiary's recognition and ability in factual terms and must set forth the expertise of the affiant and the manner in which the affiant acquired such information.
• Copies of any written contracts between the petitioner and beneficiary, or a summary of the terms of the oral agreement under which the beneficiary will be employed, if there is no written contract.

Some terms and conditions of the H-1B classification:

• Work authorization for H-1B foreign specialty workers is employer-specific (i.e. limited to employment with the approved employer/petitioner).
• A change of employer requires a new H-1B petition; under some circumstances, a nonimmigrant who was previously issued an H1-B visa or provided H1-B nonimmigrant status may begin working for a new H1-B employer as soon as the new employer files a “nonfrivolous” H1-B petition for the nonimmigrant.
• Multiple employers require multiple H-1B petitions.
• The employer is responsible for return transportation costs for an employee terminated prior to the end of the approved period of employment.
• H-1B foreign specialty workers are not required to maintain foreign residence and may seek permanent residence in the U.S.

The H-1B and H-1B1 certification is valid for the period of employment indicated on the Labor Condition Application (LCA), specifically the Form ETA 9035E, for up to three years . E-3 certification is valid for a period of employment of up to two years.

A foreign worker can be in H-1B status for a maximum continuous period of six years. After the H-1B expires, the foreign worker must remain outside the U.S. for one year before another H-1B petition can be approved. Certain foreign workers with labor certification applications or immigrant visa petitions in process for extended periods may stay in H-1B status beyond the normal six-year limitation, in one-year increments.

To hire a foreign worker on an H-1B, the job must be a professional position that requires, at a minimum, a bachelor's degree in the field of specialization. The occupation for which the H-1B classification is sought must also normally require a bachelor's degree as a minimum for entry into the occupation.

Each employer seeking an H-1B, H-1B1, or E-3 nonimmigrant has several responsibilities:

• The employer shall submit a completed Labor Condition Application (LCA) on Form ETA 9035E in the manner prescribed by the regulations. By completing and signing the LCA, the employer agrees to several attestations regarding an employer's responsibilities, including the wages, working conditions, and benefits to be provided to the nonimmigrant.
• The employer shall make the LCA and necessary supporting documentation available for public examination at the employer's principal place of business in the U.S. or the place of employment within one working day after the date on which the LCA is filed with ETA.
• The employer may then submit a copy of the approved LCA to U.S. Citizenship and Immigration Services (USCIS) with a completed petition (USCIS Form I-129) requesting H-1B or H-1B1 classification.
• The employer shall not allow the nonimmigrant worker to begin work until USCIS grants the worker authorization to work in the U.S. for that employer or, in the case of a nonimmigrant who is already in H-1B status and is changing employment, to another employer until the new employer files a petition supported by a certified LCA.
• The employer shall maintain documentation to meet its burden of proof with respect to the validity of the statements made in its LCA and the accuracy of information provided, in the event that such statement or information is challenged. The employer shall also maintain such documentation at its principal place of business in the U.S. and shall make such documentation available to DOL for inspection and copying upon request.

• H-1B, H-1B1, or E-3 statuses require a sponsoring U.S. employer; an individual cannot gain status on his/her own. First, the employer completes preliminary actions prior to filing an application with the DOL. It must determine the prevailing wage for the position using one of the following:
  • Using a determination for the occupation and area issued under the Service Contract Act of the Davis-Bacon Act;
  • Using a rate set forth in a collective bargaining agreement;
  • Requesting that a SWA prevailing wage determination be made;
  • Using a survey conducted by an independent authoritative source; or
  • Using another legitimate source of information.
  The employer must also inform U.S. workers of the intent to hire a foreign worker by posting the completed LCA, Form ETA 9035E, for the position. The posting must occur within the 30-day period preceding the date that the labor condition applications is submitted to the DOL. Posting may occur in one of two methods: hard copy or electronic notice. The hard copy notice must be given to the bargaining representative for workers in the occupation or, if there is no bargaining representative, be posted for 10 consecutive days in at least two conspicuous locations at each place of employment where any H-1B nonimmigrant will be employed. Distribution can be by whatever means the employer normally communicates with its employees (i.e., e-mail, bulletin board, and home web page). A copy of the LCA must also be provided to each nonimmigrant.
• LCAs will be returned not certified to the employer or the employer's authorized agent or representative when either or both of the following two conditions exist:
  • When Form ETA 9035E is not properly completed. Examples of not properly completing Form ETA 9035 or Form ETA 9035E include instances of the following:
    • Where the employer has failed to mark the attestations;
    • Where the employer has failed to state the occupational classification, the wage rate, period of intended employment, or prevailing wage; or
    • Where the application does not contain the signature of the employer or the employer's authorized agent or representative (applicable only to those applications submitted via U.S. Mail).
  • When Form ETA 9035 or Form ETA 9035E contains obvious inaccuracies. Examples of obvious inaccuracies are shown below:
    • The employer files an application in error;
    • The Administrator, Wage and Hour Division, ESA has notified ETA in writing that the employer has been disqualified from employing H-1B or H-1B1 nonimmigrants under section 212(n) of the INA
    • Stating a wage rate below the Fair Labor Standards Act's minimum wage;
    • Submitting an LCA earlier than six months before the beginning date of the period of intended employment;
    • Identifying a wage rate which is below the prevailing wage listed on the LCA; or
    • Identifying a wage range where the bottom of the range is lower than the prevailing wage listed on the LCA.
  • If the LCA is returned for correction, the employer may correct or resubmit their original application. Any resubmissions will be processed as if they are new requests (first come, first served basis).
  • Upon DOL certification, the employer files the USCIS Form I-129, the required filing fee, and other supporting documentation (including the approved LCA) to USCIS. Unless specifically exempt under the law, the employer must pay USCIS filing fees.
  • Employers must keep the LCA in its public file and provide a copy to workers for whom the LCA supports their visa.

Dependents (spouses and unmarried children under 21 years of age) of H-1B workers are entitled to H-4 status with the same restrictions as the principal. Dependents may not be employed under the H-4 classification. Visit our H-4 visa for detailed information.

Visit the H-1B visa FAQ page for all H1-B related questions.

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