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Who May Be the H-1B Petitioner?

Last updated on Nov 1st, 2017

H-1B classification is the most commonly used non-immigrant employment classification. But, not all non-citizens may apply for H-1B status (or the related H-1B visa). And before one applies for an H-1B status, pre-requisite steps must be completed. Applying for H-1B status is only one step of the process of getting such status, and the process begins with an employer’s actions. Namely, the process begins with an employer petitioning for H-1B classification. Because of the importance of petitioning, it is important for many potential H-1B workers and for employers to know which—which employers—may file the H-1B petition.

To successfully petition for H-1B visa classification:

  • The employer must be a US employer
  • The position must be H-1B eligible
  • The non-citizen must be eligible
  • H-1B visas must be available
  • The employer must submit a Labor Condition Application.

It is useful to flesh out the second entry on the list: the employer needs to offer a job in the US that requires theoretical and practical application of highly specialized knowledge, and requires attainment of a bachelor’s or higher degree in a specific specialty, or its equal, as a minimum for entry into the occupation in the US. (The non-citizen worker might later applying for H-1B status must satisfy the job requirement and might do so with his or possession of something that equals the US bachelor’s degree in the specific specialty. This might be a foreign degree; or work experience alone; or a combination of courses, professional work experience, diplomas, and degrees; or a combination of academic courses, degrees, or diplomas.)

It is also useful to flesh out the first entry on the above list: the employer is an entity (1) that hires a person to work in the US, (2) that has an employer-employee relationship with the worker evidenced by the fact that the employer may pay, fire, supervise, or control the non-citizen’s work, and (3) that has an IRS Tax Identification number. The employer in this context might be a person, or some organization that is more typically thought of as an employer, including a corporation, a contractor, an association, or some other kinds of organizations.

It is worth noting, that a US agent may file an H-1B petition for a non-citizen worker if certain conditions are met. A non-citizen worker may not self-petition when it comes to H-1B status, that is a non-citizen worker may not file a petition on his or her own behalf. But a non-citizen worker may use a US agent to file a petition on the non-citizen worker’s behalf.

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