H-1B Visa Application Process
Created by FindLaw's team of legal writers and editors | Last reviewed June 20, 2016
Those who meet the criteria for one of the three main types of H-1B visas (see H-1B Visa Requirements) must follow a three-step process when applying, which includes actions taken by the employer. H-1B visas, which are nonimmigrant employment visas set aside for foreign workers with special skills or working in specialized fields, are valid for six years and spouses of H-1B visa holders may enter the U.S. on H-4B visas.
Below are brief explanations of the three steps required for an H-1B visa application:
1. Employer files Labor Condition Application to the Dept. of Labor for certification
In the Labor Condition Application, the employer must attest that it will comply with certain labor requirements. Violations of these requirements can result in fines, bars on sponsoring additional visa petitions and other sanctions against the employer. The labor condition requirements are as follows:
- Employer will pay the H-1B holder a wage that is equal to the wage paid to similarly qualified workers or, if greater, the standard wage paid for the position in the corresponding geographical location.
- Employer will adhere to working conditions that will not negatively impact existing, similarly employed workers. There must be no strike or lockout at the time of the application and a notice of the application with the DOL must be provided to the union representative (if applicable) or posted at the business location.
Employers must obtain certification of a Labor Condition Application for H-1B (specialty workers) and H-1B3 (fashion models) applicants. This does not apply to H-1B2 (Dept. of Defense research and development workers) applications. For more information about the Labor Condition Application process, see the DOL's Hiring Foreign Workers section.
2. Employer files Petition for Nonimmigrant Worker (Form I-129) to U.S. Customer and Immigration Services (USCIS)
Form I-129 (PDF), the Petition for a Nonimmigrant Worker, must be completed by the employer and submitted to the proper USCIS Service Center. The employer must submit a DOL-certified Labor Condition Application (explained above) along with Form I-129.
3. Prospective worker (outside the U.S.) applies for visa/admission
After the employer-submitted Form I-129 is approved (along with the Labor Condition Application), the prospective foreign worker who is outside the U.S. must apply for an H-1B visa (if required) and/or entry at a U.S. embassy or consulate. Regardless of the visa requirement, prospective H-1B workers must apply for entry into the U.S. in H-1B classification with the USCIS.
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