H-1B

The H-1B visa program allows U.S. employers to temporarily employ foreign workers in specialty occupations.

Overview of the H-1B Process

  • Fordham files a Labor Condition Application (LCA) with the Department of Labor (DOL), ensuring that prevailing wages will be offered to the prospective H-1B employee.
    • The LCA must be certified by the DOL and included with the H-1B petition to the United States Citizenship and Immigration Services (USCIS).
    • The earliest the LCA can be filed with DOL is 6 months before the proposed start date.
  • Once the LCA is approved by DOL, Fordham files the H-1B petition (Form I-129) along with the certified LCA and supporting documents to USCIS.
    • The H-1B petition can be filed up to 6 months before the employment start date.
  • USCIS reviews the petition and, if approved, grants H-1B status to the foreign employee. 
  • If the new employee is located outside the U.S., USCIS will inform the Department of State to facilitate visa application procedures. The beneficiary is required to apply for an H-1B visa at at U.S. consulate or embassy abroad prior to entry into the U.S.

H-1B Status Overview

  • Initial H-1B status allows for a maximum stay of up to 3 years, with extensions possible in 3-year increments thereafter, up to a total of 6 years.
  • H-1B 6-Year Limit. An individual is allowed to stay in H-1B status in the United States for a maximum of 6 years. The duration spent in any H category, excluding H-4, or in L status, excluding L-2, is subtracted from the total available period of stay in H-1B.
  • 212(e). Individuals subject to the 212(e) 2-year home residence requirement are not eligible for H-1B visas.
  • Employment is limited to the specific employer and employment specified in the approved H-1B petition. However, regulations permit holding positions with multiple concurrent employers, as long as each H-1B employer has a separate petition approved by USCIS.
  • “Dual intent” is recognized. This means that an H-1B nonimmigrant is not subject to the presumption of immigrant intent under INA § 214(b), so that section of law cannot serve as a basis for denying an H-1B visa.