Is it necessary to prove that the position cannot be filled by an American worker?

No. The H-1B does not require the employer to prove that no U.S. worker could fill the position. That type of demonstration, known as a labor market test, is part of other immigration processes, but not of this visa.

What the H-1B does require is something different. Before filing a petition, the employer submits a Labor Condition Application (LCA) to the U.S. Department of Labor, in which it makes commitments such as:

• Paying the prevailing wage established for the role and location.
• Offering working conditions that do not adversely affect local employees.
• Complying with the other labor obligations associated with the hiring.

In other words, the focus is on protecting wage and working conditions and on validating the requirements of the specialty occupation, not on proving the absence of local candidates. This is often confused with employment-based green card processes, which have their own rules.

Because requirements can change, it is worth confirming updated information with USCIS and the Department of Labor, or with a trusted immigration professional.

About the author

Victoria Harper

Editor-in-Chief

Meet the author

As a journalist and lead editor at Visto n’ Visa, Victoria helps ensure that immigration topics are covered in a clear, trustworthy, and easy-to-understand way. Her focus is on delivering useful, human, and relevant content for people exploring new paths abroad.