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H-1B Advisor

The H-1B Advisor provides guidance on the H-1B classification for temporary employment of foreign workers in the United States in specialty occupations or as fashion models. The Immigration and Nationality Act (INA) as amended created the H-1B classification for temporary employment of foreign workers in the United States in specialty occupations or as fashion models. Amendments also created the H-1B1 classification for workers of Chile and Singapore in specialty occupations and the E-3 classification for workers of Australia in specialty occupations. In this Advisor, the term H-1B will include H-1B1 and E-3 unless otherwise noted. The intent of the H-1B provisions is to help employers who cannot otherwise obtain needed business skills and abilities from the U.S. workforce by authorizing the employment of qualified individuals who are not otherwise authorized to work in the United States. The law establishes certain standards in order to protect similarly employed U.S. workers from being adversely affected by the employment of the nonimmigrant workers, as well as to protect the H-1B workers.

The H-1B program responsibilities are divided among various agencies: the Department of Labor's Office of Foreign Labor Certification (OFLC) and Wage and Hour Division (WHD), the Department of Homeland Security's U.S. Citizenship and Immigration Service (USCIS) and the U.S. Department of State (DOS). To obtain H-1B workers an employer must:

  1. Submit a labor condition application (LCA) to OFLC in which it attests it will comply with the material facts and labor condition statements.
  2. Provide to USCIS the OFLC certified LCA, along with the "Petition for Nonimmigrant Worker," Form I-129. The petition includes some of the same information as the LCA, and as part of its review, USCIS reviews information on both documents to determine whether the job meets the requirements of a specialty occupation and whether the petition indicates that the qualifications of the prospective H-1B worker meet the statutory requirements in that specialty. USCIS approval is provided by Form I-797.
  3. Send the foreign workers located outside the United States to the DOS to obtain a visa to work in the United States with a specific employer for a designated calendar period of time. If the foreign worker is already in the United States, USCIS provides the nonimmigrant an "Employment Authorization Document," which supplements the nonimmigrant's existing visa. Once an employer obtains the certified LCA and approved petition, WHD enforces the attestations within the LCA, which include the material facts and labor condition statements.

This H-1B Advisor provides employers and employees with the information they need to understand how to comply with the attestations enforced by WHD. At the end of each interactive section, you will receive a results page based upon your answers to relevant questions. You may wish to print this page before proceeding. Attestations are specific to each LCA and to each H-1B worker. Thus, you may want to answer certain sections multiple times where you have differing circumstances. We recommend that you review each item offered to you in this Advisor. Your answers will not be saved once you have exited the Advisor.

This Advisor will not review the process for participating in the program, nor will it review the process for invoking portability. Questions concerning such matters should be referred to the agencies cited above.

If while using the Advisor you come across a term you do not understand, you may want to review the H-1B Advisor Glossary of Terms.

The H-1B Advisor is one of a series of elaws (Employment Laws Assistance for Workers and Small Businesses) Advisors developed by the U.S. Department of Labor (DOL) to help employers and employees understand their rights and responsibilities under Federal employment laws. To view the entire list of elaws Advisors please visit the elaws website. To learn more about DOL's efforts to promote and achieve compliance with labor standards in place to protect and enhance the welfare of the nation's workforce, visit the Wage and Hour Division (WHD) website.