How to Sponsor an Individual for an H-1B Visa

The H-1B visa provisions authorize the employment of select qualified individuals who are not otherwise authorized to work in the United States. The intent of this program is to help employers that cannot otherwise obtain needed business skills and abilities from the U.S. workforce for certain specialty occupations. The H-1B visa is valid for up to three years and renewable for an additional three years, for a maximum of six years. 

The U.S. Citizen and Immigration Services (USCIS) defines a specialty occupation as one that requires the theoretical and practical application of a body of specialized knowledge and a bachelor's degree or the equivalent in the specific specialty (e.g., sciences, medicine, health care, education, biotechnology, business specialties).

Current laws limit the annual number of qualifying foreign workers who may be issued a visa or otherwise be provided H-1B status to 65,000, with an additional 20,000 under the H-1B advanced degree exemption. Qualifying nonprofit research institutions are exempt from this cap. The USCIS generally takes three to six months to process a completed application, but employers may choose to expedite the process by paying for premium processing, which guarantees the USCIS will adjudicate the petition within 15 days. For more information, see How Do I Use the Premium Processing Service?

This guide outlines the steps an employer would take to petition the USCIS for approval to hire an H-1B worker.

Step 1: Review the Job Description to Ensure It Qualifies as a Specialty Occupation

The job qualifications must meet one of the following criteria to qualify as a specialty occupation:

• Bachelor's or higher degree or its equivalent is normally the minimum entry requirement for the position.
• The degree requirement for the job is common to the industry, or the job 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.
• The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree.

When recruiting for such a position, employers must ensure their applicants meet one of the following criteria:

• Have completed a U.S. bachelor's or higher degree required by the specific specialty occupation from an accredited college or university.
• Hold a foreign degree that is the equivalent to a U.S. bachelor's or higher degree in the specialty occupation.
• Hold an unrestricted state license, registration or certification that authorizes them to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment.
• Have education, training or progressively responsible experience in the specialty that is equivalent to the completion of such a degree (generally three years of work experience or training in the field may equate to one year of college), and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

Step 2: Determine the Rate of Pay for the Position

The H-1B employer must pay its H-1B workers at least the "required" wage, which is the higher of the prevailing wage or the employer's actual wage (in-house wage) for similarly employed workers. This wage rate must be reported on the labor condition application (LCA) to the U.S. Department of Labor (DOL).

Although the regulations governing the LCA process do not require an employer to use any specific wage methodology to determine the prevailing wage, they do require that the prevailing wage be based on the best information available at the time the employer files an application. See 20 C.F.R. §655.731 for specific guidance.

Employers have the option of using one of three wage sources to obtain the prevailing wage:

• A Prevailing Wage Determination (PWD) obtained from the National Prevailing Wage Center (NPWC);
• A survey conducted by an independent authoritative source; or
• Another legitimate source of wage information. This may include a wage rate set forth in a collective bargaining agreement.

By obtaining a PWD from the NPWC, employers are given "safe-harbor status," meaning that if the employer's wage compliance is investigated for any reason, the Wage and Hour Division of the Department of Labor will not challenge the validity of the prevailing wage as long as it was applied properly (i.e., correct geographic area, occupation, and skill level).

To request a prevailing wage determination (PWD) employers must complete Form ETA-9141 and submit it to the NPWC. Electronic filing using the Foreign Labor Application Gateway (FLAG) System is strongly recommended.

Step 3: Notify the U.S. Workforce

Notice must be given to U.S. workers on or within 30 days before the date the employer files the LCA with the DOL. This notice must meet the requirements of 20 C.F.R. §655.734. A copy of the completed LCA can serve as the notice, but it is not required to be posted as long as all the required information is posted. Required information includes:

• The number of H-1B nonimmigrants the employer seeks to employ.
• The occupational classifications in which the H-1B nonimmigrants will be employed.
• The wages offered.
• The period of employment.
• The locations at which the H-1B nonimmigrants will be employed.
• The following statement: "Complaints alleging misrepresentation of material facts in the labor condition application and/or failure to comply with the terms of the labor condition application may be filed with any office of the Wage and Hour Division of the United States Department of Labor."

Worker notification must be done in one of the following ways:

• When there is a collective bargaining representative for the occupation in which the H-1B worker will be employed, the employer must provide such notice to that collective bargaining representative via a copy of the LCA or other document that includes all items listed above.
• When there is no collective bargaining representative, the employer must provide the items listed above by either of the following:
• • Hardcopy worksite notice. Post the notice of the filing of the LCA (or the information therein) at two conspicuous locations at the place of employment for 10 days. Appropriate locations for posting the notice include near Wage and Hour Division notices or Occupational Safety and Health Administration notices.
  • Electronic notice. Electronically provide the notice of the filing of the LCA to all workers at the place of employment. If an employer chooses to provide notice electronically, the employer must electronically notify all employees at the place of employment in the occupational classification for which H-1B workers are sought. This notice may be provided by sending individual e-mail messages, by posting on an appropriate electronic bulletin board for 10 days or by using other appropriate methods.

Step 4: Submit Labor Condition Application (LCA/Form 9035/9035E) to the DOL for Certification

The employer must apply for and receive DOL certification of an LCA no more than six months before the initial date of intended employment. An employer's LCA must list all the places of intended employment that are identified at the time of filing. There is no fee to apply for an LCA.

This application includes certain attestations, a violation of which can result in fines, bars on sponsoring nonimmigrant or immigrant petitions and other sanctions to the employer. The application requires the employer to attest that it will comply with the following labor requirements:

• The employer will pay the beneficiary a wage that is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for the position in the geographic area in which the visa holder will be working.
• The employer will provide working conditions that will not adversely affect other similarly employed workers. At the time of the labor condition application, there is no strike or lockout at the employer's place of business. Notice of the filing of the LCA with the DOL has been given to the union bargaining representative or has been posted at the place of business.

LCAs must be filed electronically with the DOL through the FLAG System.

The two exceptions to electronic filing are business owners with physical disabilities or employers that lack Internet access and cannot electronically file the LCA through the FLAG System. An employer must petition the Administrator of the OFLC for special permission to file an LCA by mail on the ETA Form 9035.

LCAs are reviewed by the DOL within seven working days for completeness and obvious errors or inaccuracies.

Employers may check the status of applications that they have submitted to the DOL and directly access their certified applications at any time by logging into the FLAG System.

Step 5: Register with the USCIS for the Annual H-1B Lottery

*Some employers may wish to complete this step and register before they notify and file an LCA while others may wish to file the LCA first to have that step completed. Each employer will need to determine which strategy best meets their needs.

Due to the limited number of H-1B visas granted each year, the USCIS holds an annual lottery for employers seeking to sponsor the visa on behalf of the worker who will be the visa holder or "beneficiary". Employers wishing to be entered into the lottery must first submit an electronic registration requiring only basic information about the company and the requested beneficiary generally between March 1 and March 20 and pay a $10 fee per beneficiary. No later than March 31 of each year, the USCIS will notify registrants if they were randomly chosen in the lottery to meet the visa cap. Only those chosen in the lottery may submit a I-129 petition.

In order to submit a registration, employers (registrants) must first create a USCIS online account. When creating the account, select "I am an H-1B registrant" as the account type. See the USCIS video on how to create an online account.

Once registration is open, registrants may then select "File a registration" from their online account and begin to register one or more prospective beneficiaries. If an attorney or other representative is providing the registration data, they will also create an online account, receive a passcode, and pass that on to the employer. The employer then enters the passcode in the field below "File a registration" instead and will be able to examine the data entered by their representative. See the USCIS slides showing the employer's registration process for additional guidance.

The information required to file a registration is:

• Legal name of petitioning company
• Doing Business As name of petitioning company, if applicable
• Employer Identification Number
• Employer address
• Authorized signatory's name, title, and contact information
• Beneficiary's name, gender, date of birth, country of birth and/or citizenship, and passport number
• Whether the beneficiary has earned a master's or higher degree

Duplicate entries for the same registrant and beneficiary are prohibited. If an employer submits duplicate registrations in the same fiscal year, the USCIS will consider all registrations filed by that company for that beneficiary to be invalid.

Once the employer or representative has entered the required data and checked for errors, they will click on the button to submit, and be taken to pay.gov to pay the registration fee. Only when the fee has been paid will the registrations be considered submitted.

Step 6: Await Lottery Selection

After registration closes, the USCIS will conduct a random selection on all registrations first to meet the 65,000 limitation; then a random selection for the additional 20,000 visas will be conducted among the remaining prospective beneficiaries with a U.S. master's degree or higher.

A registrant's USCIS online account will show one of the four following statuses for each registration:

• Submitted: A registration status may continue to show "Submitted" after the initial selection process has been completed. "Submitted" registrations will remain in consideration for selection until the end of the fiscal year, at which point all registration statuses will be Selected, Not Selected or Denied.
• Selected: Selected to file an H-1B cap-subject petition for this fiscal year.
• Not Selected: Not selected for this fiscal year.
• • Please note that a registration will not reflect a status of Not Selected until the conclusion of the fiscal year. In the event that USCIS determines that it needs to increase the number of registrations projected to meet the H-1B regular cap or the advanced degree exemption allocation, USCIS will select from registrations held in reserve to meet the H-1B regular cap or advanced degree exemption allocation.
• Denied: The same registrant or representative submitted more than one registration on the beneficiary's behalf for the same fiscal year. All registrations the registrant or representative submitted on behalf of the same beneficiary for the same fiscal year are invalid.