By Atty. Allison Aquino

The Department of Homeland Security (DHS) has confirmed that the H-1B visa cap has not yet been reached and that it continues to accept H-1B visa petitions for processing.  As of November 26, 2010, the DHS has received only approximately 50,400 H-1B visa petitions towards the 65,000 visa cap.

To qualify for an H-1B visa, the petitioning company must be able to prove the following requirements:  (1) the position which the immigrant will fill is a “specialty occupation”, and (2) the immigrant meets the requirements for the specialty occupation.  In other words, the company must prove that the position offered is a professional position that mandates an individual with at least a bachelor’s degree or equivalent in a specific field, and that the individual sponsored has that particular type of bachelor’s degree or work experience equivalence.

The process to apply for an H-1B visa has been modified so that it now involves several steps before submitting the petition to the CIS.  As such, individuals seeking to apply for an H-1B should start the process as soon as a sponsor commits to filing the petition.
An initial step in the process involves verification of the sponsor’s federal employer identification number (FEIN) with the Department of Labor (DOL).  Documentation must be submitted to the DOL evidencing the existence of the sponsoring company through verification of the tax identification number.  The verification process typically takes a few days to a week.

Another initial step is to provide notification that a Labor Condition Application (LCA) will be filed with the DOL.  The LCA contains attestations regarding the working conditions and wage to be paid to the sponsored individual.  The notification must be provided to the union’s bargaining representative or, if none, by posting the notice of filing for ten consecutive days.  Alternatively, for expediency, the notice of filing can be emailed to the company’s employees who are in the same occupational classification in which the H-1B petition is to be filed.

Once the FEIN has been verified, and the notice of filing the LCA has been conducted, the LCA must then be electronically filed with the DOL.  The processing of the LCA typically takes about one week.  Only after the DOL has certified the LCA may the H-1B petition be filed with the CIS.

The H-1B visa allows the individual to work in the US for an initial period of up to three years.  The H-1B visa can thereafter be extended for another three years, and then at either one year or three year intervals provided certain requirements are met.  While working in the US as an H-1B visa holder, the individual can then undertake the steps necessary to obtain lawful permanent residency.

The family members of an H-1B visa holder are also able to derive benefits for themselves.  The spouse and unmarried children under age twenty-one are eligible to obtain an H-4 dependent visa in order to accompany the H-1B visa holder to the US.

Given the increased investigation by the CIS with compliance to the provisions of H-1B visas, including onsite inspections after approval of an H-1B visa, it is important that all requirements under the regulations are met.  Individuals must therefore ensure proper legal representation in the handling of the visa petition to avoid any complications and potential problems.


For further information, please schedule an appointment with Atty. Allison Aquino or Atty. Richard M. Loew of Aquino & Loew, A Professional Law Corporation, 625 Fair Oaks Avenue, Suite 101, South Pasadena, CA, 91030; (626) 799-3089;  Please also visit Aquino & Loew at  Aquino & Loew also handles family law and criminal law matters.  Free initial office consultation is available upon appointment.