H Visa - Professional Workers
The H-1B category is one of the most popular non-immigrant work categories. The immigration attorneys in our office can assist you or your prospective employee in obtaining an H-1B work-related visa. However, it is best to contact our office as soon as the H-1B becomes an option as it is subject to a limited number of visas per year. In order to be eligible, the applicant must have a degree equivalent to a U.S. Bachelor’s degree and a professional position.
The individual worker cannot apply for an H-1B visa to allow them to work in the U.S. The employer must petition for entry of the employee. U.S. employers may begin applying for the H-1B visa six months before the actual start date of the visa.
One of the features that makes the H-1B visa so desirable is that, unlike many other non-immigrant visas, it is a "dual intent" visa. This means that a visa will not be denied simply because an individual has intentions to become a permanent resident. The assumption is that if for some reason the permanent residency petition is denied, the person would still have the intention to return home. Thus, assuming the applicant meets all of the statutory requirements for the H-1B visa, the main reason it would be denied is if the consular officer feels there is good reason to believe the applicant will not comply with the terms of the visa.
Another advantage to the H-1B category is that the employer does not need to demonstrate that there is a shortage of qualified U.S. workers and, consequently, a labor certification process can be avoided. Aside from documenting that the position offered is in a specialty occupation and that the employee has the appropriate credentials for the job, the employer need only verify that the H-1B worker is being paid the prevailing wage for the work being performed and that employment of a foreign worker is not harming conditions for U.S. workers.
Filing Requirements
The procedure first requires the filing of a Labor Condition Application (LCA) with the Department of Labor. The LCA requires the employer to affirm that (1) the actual wage level will be paid to all individuals with similar experience and qualifications for the job, and (2) the prevailing wage level will be offered to the foreign employee. The employer must post the notice of the filing of the application in two conspicuous locations for at least 10 days. Once the Labor Department certifies the LCA and the position and qualifications have been analyzed, the employer may file the petition for the non-immigrant worker with the U.S. Citizenship and Immigration Services (USCIS).
There are two critical issues in analyzing if an H-1B visa is appropriate in a given situation. First, the alien must hold a Bachelor's degree (or the equivalent) that is traditionally professional in nature. Second, the position offered must be in a specialty occupation. In cases where the alien's degree is not considered the equivalent of a U.S. Bachelor's degree, it is possible to include relevant work experience. The USCIS allows the experience and education of an alien to be combined and equated to the attainment of a Baccalaureate degree from a U.S. institution.
The H-1B visa is designed to be used for staff in "specialty occupations", that is, those occupations which require a high degree of specialized knowledge. Generally at least the equivalent of a relevant 4-year U.S. Bachelor's degree is required. This requirement can usually be met by having a 3-year degree and 3 years' relevant post-graduate experience. Non-graduates may be employed on an H-1B visa where they can claim to be 'graduate equivalent' by virtue of twelve or more years' experience in the occupation. If the applicant is not in a "specialty occupation" or lacks the required education and experience for an H-1B visa, they may have the option of applying for an H-2B visa.
H-1B legislation requires certain employers to advertise positions in the U.S. before petitioning to employ H-1B workers for those positions. H-1B dependent employers are defined as those having more than 15% of their employees in H-1B status (For companies with over 50 employees. Smaller companies are allowed a higher percentage of H-1B employees before becoming “dependent”). In addition, all new H-1B petitions and 1st extensions of H-1B's require a fee, in addition to the usual filing fees, of US$1,000 to be paid by the employer to fund training programs for resident U.S. workers.
Validity Period
The H-1B petition will initially be valid for the maximum period of three years and may be renewed for an additional three years. During that time, the alien may work as a professional in the U.S. After this time, an alien must remain outside the U.S. for one year before another H-1B petition can be approved.
An alien in the U.S. may work for a different employer provided that they first obtain a new H-1B approval through a petition by the new employer. This requires a new application similar to that initially filed. This new application is generally not subject to the yearly cap.
Once a company has brought an employee to the U.S. on an H-1B visa, should the company dismiss that employee before the expiry of the visa, the company is liable for any reasonable costs that the employee incurs in moving themselves and their possessions back to their last foreign residence. This provision covers only dismissal, it is not relevant when an employee chooses to resign.
H-1B Portability
In October 2000, former President Clinton signed the American Competitiveness in the Twenty-First Century Act (AC21). One of the most sought after provisions in AC21 is the"portability" provision, which eases the process of changing jobs. Under it, H-1B workers can begin working for a new employer as soon as the new employer files an H-1B petition for the worker. In the past, the worker had to wait for the petition to be approved before
they could begin working for the new employer. To take advantage of the portability provision, the worker must be in the U.S. pursuant to a lawful admission, and must not have engaged in unauthorized employment since that admission.
Path to Permanent Residence
The H-1B visa is a non-immigrant visa, which allows a U.S. company to employ a foreign individual for up to six years. Since applying for a non-immigration visa is generally quicker than applying for a U.S. green card, staff required on long-term assignments in the U.S. are often initially brought in using a non-immigrant visa such as the H-1B visa.
Those wishing to remain in the U.S. for more than six years may, while still in the U.S. on an H-1B visa should apply for permanent residence (green card). If such employees do not gain permanent residence when the six year period runs out, they must live outside the U.S. for at least one year before an application is made for them to enter on an H or L visa.
H-1B visa procedures and requirements are complex and visa processing times can be lengthy. Regular processing usually takes three to seven months depending where the petition is filed. However, USCIS offers a Premium Processing service (for an additional $1,000 fee) which ensures processing within 15 business days. If the H-1B beneficiary is residing abroad, he or she will have to apply for the H-1B visa at the U.S. Consulate before being granted entry into the U.S. Thus, processing times may vary depending on the individual petition. Contact our office to determine what processing time you can expect for your case.
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