To initiate an employment based application, the employer must first qualify as an approved employer.  The employer must have an EIN or Employer Identification  Number issued by the Internal Revenue Service. 

The employer must meet the renumeration requirements set forth as the  Prevailing Wage.  In this regard, the employer must pay the prospective employee the normal wage paid to similar employees in the geographic location where the employee will be working. There are several ways to meet this requirement.  The most common method is through a 'prevailing wage request' filed with the local office of the state labor department. 

Thirdly, the employer must prepare and file a Labor Condition Application with the Regional Office of the United States Department of Labor. The filing of this application places legal requirements upon the employer to notify other workers similarly situated and to attest to certain existing labor conditions. 

Once the Labor Condition Application is approved, the employer must file a petition with the I.N.S.  For an H-1B petition the employer has the burden of proving that the position offered requires the services of a person in a specialty occupation. This requirement is usually met if the employee has the equivalent of a B.S. or B.A. degree.

The H-1B is a non-immigrant classification.  In essence, it is a temporary visa with specific limitations on the duration of stay in the United States. The initial period of stay is three (3) years and can be renewed for a subsequent three (3) year period by filing another petition with the Immigration and Naturalization Service. 

After six (6) years in this classification the employee must spend one (1) year outside of the United States before they can have another H-1B visa. Many employees on H-1B visas obtain permanent resident visas (via a green card) during their initial stay in the United States. 

The H-1B employee's spouse and unmarried dependent children under twenty one (21) years old may be granted an H-4 visa. An H-4 visa holder is not entitled to work in the United States. They may, however, attend school. 

Click here to learn the responsibilities of the employer and employee, respectively.