Frequently Asked Questions

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 H-1B is a temporary worker in a specialty occupation.  

A specialty occupation is one that requires the theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation and the attainment of at least a bachelor's degree or its equivalent.  

• Employers should bring H-1b workers to the U.S. to work in a specialty occupation 
• Employees should have at least a bachelor’s degree in the specific specialty, or its equivalent, as a minimum for entry into the profession. Hence employees should have a degree that is related to the field of specialty occupation. 

An Employer starts the H-1B process by filing an H-1B Registration electronically, on behalf of the potential Employee. The employee will be selected by USCIS through an H-1B lottery process.  

An Employer ( Known as Registrant) or the Attorney( Known as authorized representatives) may file H-1B Registrations with the USCIS  

Step 1: Create an account.  

Log on to my.USCIS.gov- click create an Account- sign up-follow the Instructions on the screen 

Step 2: Choose a method to receive the verification code and enter the code when you receive it. 

Step 3: If you have an attorney – do not click file a registration. Your attorney will prepare the registration and provide you with a passcode to review and approve the registration. Enter the passcode where it states, “Received a passcode from your Attorney or Representative”. Then, review and approve the Registration. Sign the G-28 and H-1B Registrant forms by entering Employer’s authorized signatory information. If you do not have an attorney, click file registration- follow the instructions in the screen.

Step 4: Pay $10 through pay.gov and send the H-1B Registration to the USCIS.  

After the registration is completed, the employer will have to wait to hear from the USCIS to see whether the Employer’s potential employees have been selected through the Lottery.  

If Selected, the Employer may file the completed H-1B application to USCIS to complete the H-1B Process. 

If Not Selected: at the end of the fiscal year, (usually runs from October 1st of the previous year to September 30th of the current year)USCIS adds “ Not selected” to employees who are not selected within that fiscal year, on my USCIS.gov website.  

1. Obtaining a Certified Labor Condition Application (“LCA”) from the Department of Labor which establishes the conditions of the employment. 
2. Once LCA is certified, file complete Form I-129 and file the petition with USCIS 
3. Potential H-1B worker, if outside of the US, attends the visa interview at the consulate to obtain the H-1B visa stamp. 
4. Potential H-1B workers if already inside the US and that was indicated in the I-129 petition, the worker can begin work for the employer as described in the petition. 

1. The employer must be a bona-fide employer in the United States. 

• Obtain a Federal Employer Identification Number(“FEIN”) issued by IRS. 
• Obtain Articles of Incorporation  
• Obtain a business license in the state, city, county, or municipality where the employer’s business operates. 
• Create by-laws unless not applicable under state laws. 
• Have a designated authorized signatory, an employee who can bind the corporation in legal proceedings.

2. The job offer must be a bonafide Offer. 

• Actual job opportunities must exist at the time of H-1B filing. 
• Must have an employer–employee relationship. (If the employee works for an end client, the employer should be able to show the control of the employee through documentary evidence.) 

3. Employers should pay a salary to the employee based on the prevailing wage of the intended area of employment. ( Ability to pay) 

4. If the employer has multiple worksites, the employer should pay the higher prevailing wage for all applicable worksites. 

5. The employer must agree to abide by/comply with the following Labor condition Statements: 

• Will pay the higher of the actual or prevailing wage rate. 
• Will pay the employee for non-productive time. 
• Will Offer benefits on the same basis as those offered to U.S. Workers 
• Will provide working conditions that will not adversely affect similarly employed U.S. Workers. (Including vacation, hours, shifts, seniority-based benefits, etc.) 
• Will not place H-1B at a site with a strike/lockout in the same occupational classification on the LCA. 
• Will notify union workers of the LCA filing by an LCA copy /notice posting for 10 days at two conspicuous locations or Notice will post electronically. 
• Will provide a copy to the H-1B worker. 

6. In addition, the Employer must also maintain a public disclosure file at the Employer’s principal place of business or the place of employment.  

1. Information about the employer 

• Articles of Incorporation, FEIN, Business license 
• NAICS number,  
• brochures, newsletters, if any 
• Employer’s Federal Income Tax return or audited financial statement or annual report.  
• Employment contracts/SOWs/MSA/Client letters, if applicable  
• Job offer to the employee,  
• Employment agreements or employer’s handbook etc. 

2. Information about the H-1B Worker 

• Personal Information 
• Degree certificates, and transcripts ( must be related to the field of occupation) 
• Experience letters from current and previous employers describing job duties, job title, dates of employment, full-time/part-time status 
• Related Skills-certificates, awards, if any 
• Previous H-1b approvals, if any  
• Approved I-140 for H-1Bs asking for extensions beyond 6 years  

Complete I-129 with H supplement and H-1B Data Collection.  

Calculate appropriate filing fees:  

https://www.uscis.gov/forms/all-forms/h-and-l-filing-fees-for-form-i-129-petition-for-a-nonimmigrant-worker 

File the case with the appropriate service center: 

https://www.uscis.gov/i-129-addresses 

Applying for the interview at US Consulate 

• Complete DS160 Form and upload a Photo.  
• Review information at the appropriate US Consulate website and follow the instructions. 

For Indian Nationals, Our India team will be able to help with this process. Please reach out to info@scarborough.co.in 

When the H-1B first make self-available for work/comes under the employer’s control AND 

Not later than 30 days after the worker is admitted to the U.S., (if the H-1B worker does not reside in the U.S.) 

Not later than 60 days after the worker becomes eligible to work, ( if the H-1B worker already  resides in the U.S.) 

An employer is required to pay the wage rate for all non-productive time caused by the following: 

• Conditions related to the employment  
• Lack of work 
• Lack of permit 
• Studying for the licensing exam 
• Employer required training   

Failure to pay will result in the employee’s being “Benched”- Benched time must be compensated. Full-time workers must be paid full-time. Part-time workers must pay for the hours listed on LCA. 

However, payment is not required, if the reasons are unrelated to the employment such as  

Voluntary absence by the employee (absence must be truly voluntary) 

The employer’s obligation ceases only after a bonafide termination of employment as follows. 

Notify the H-1B worker that the employment relationship has been terminated. 

Notify USCIS that the employment relationship is terminated. 

Pay and/or offer to pay for transportation home, if required by USCIS  

 Generally, an H-1B worker is limited to a maximum stay of 6 years. The initial application can be approvable for 3 years and it can then extend for another 3 years.  

If the  H-1B has a passport not valid for the duration of the H-1B validity or the client contract (MSA/SOW) is for less than three years, then it is possible to have H-1B status for less than three years. 

Yes. In certain circumstances. 

1. When an H-1B employer files a PERM application for the H-1B employee 365 days prior to the end of H-1 B’s sixth year, and the PERM application is still pending for more than 365 days, or I-140 is pending for more than 365 days, H-1B can be extended beyond 6 years in one- year increments.
   
2. When H-1B employee has an approved  I-140, H-1B can be extended beyond 6 years in 3- year increments. 

The H-1B employee can recapture the time spent outside the US making the validity period extended.  

Yes. However, the new employer must file a labor condition application and then a new I-129 petition.  

Yes. If the worker is already an H-1B, he/she can begin to  work for the new employer once USCIS  

issues the receipt for the I-129 petition. 

 Yes. Please read our Green Card section to find out more details.  

Yes. The immediate family of H-1B ( Spouse and unmarried children under 21) can accompany the H-1B to the United States.  

They will no longer be eligible as dependents. They must apply to change to another appropriate visa status or depart the US.   

Unfortunately, it applies only to Immigrant Children and not to H4s.  

Yes.  H4 dependents can attend school as long as their H-1B spouse maintains his/her H-1B status.  

 H4 dependents can use form I-539 to apply for an extension. However, the H4 dependents’ status depends on the H-1b spouse’s status. Hence, they can extend only up to the expiry date of the H-1B spouse’s visa. If H-1B is no longer in status, H4 becomes invalid as well.   

Yes. Same as H-1B, H4 can travel outside and return during the validity period of the visa with following documents: 

1. Valid unexpired Notice of approval 
2. Marriage certificates/ Birth certificates 
3. Valid passport with expiration date at least 6 months in the future 
4. Valid Visa stamp in the passport and 1-94 arrival and departure record ( I-94 can be accessed at www.cbp.gov)