Legal Updates

What is an H-1B? Essential Information for Employer Hiring Foreign Nationals

What is an H-1B?

The H-1B is an employer-sponsored petition that allows foreign nationals to work in a specialty occupation in the United States.

"Employer-sponsored" means that the employer must file an H-1B petition on behalf of the prospective H-1B employee with the United States Citizenship and Immigration Services (USCIS).

"Specialty occupation" means that the foreign national must work in a position that requires specialized knowledge and skills, and at least a bachelor's degree in that specialty. 

What kinds of occupations are eligible for H-1B status?

Many different professional occupations are eligible for H-1B status. For example, occupations in the engineering and pharmaceutical industries usually qualify for an H-1B.

An H-1B employee must have at least a bachelor's degree or equivalent to qualify for H-1B status. Furthermore, the degree must have a logical connection to the duties of the position.

What is the process to apply for an H-1B?

First, the employer must submit a Labor Condition Application (LCA) to the Department of Labor. After the DOL certifies the LCA, the employer must then submit an H-1B petition, along with applicable fees, to USCIS. 

How does the Executive Order Restriction on Entry of Certain Nonimmigrant Workers affect H-1Bs?

The Executive Order imposes a $100,000 fee on new H-1Bs but is limited to petitions on behalf of foreign nationals who are located outside the United States and do not have a valid H-1B visa.

What is the H-1B "cap"?

The H-1B cap refers to the limit of new H-1Bs that can be granted per federal fiscal year. Every federal fiscal year, the federal government grants 65,000 new H-1Bs, with an additional 20,000 H-1Bs for individuals with a Master’s degree or higher. This is a congressionally set number.

To apply for a new H-1B, employers must first register their prospective H-1B employees. This registration period begins in March and is usually for a period of two weeks. After the registration period, USCIS enters all the registered individuals into a random lottery.

If an employee is selected during the lottery, they can apply for an H-1B. If the H-1B is approved, the employee can officially start work as an H-1B employee on October 1^st.

Need Guidance?

Connell Foley LLP is here to help employers navigate the H-1B process. If you have questions, please don’t hesitate to reach out.