The US H-1B visa is a non-immigrant visa that allows US companies to employ foreign professionals who have at least a four year college degree in highly technical occupational fields such as in IT, finance, accounting, architecture, engineering, mathematics, science, medicine, etc.
H-1B visas are available to foreign professionals with:
a 4 year Baccalaureate Degree or the foreign equivalent; or
individuals who can show by expert affidavits that their combination of education and qualifying experience is the equivalent of at least a U.S. four year B.A. or B.S. degree in the field.
Duration: An H-1B visa is valid initially for up to three (3) years and can be extended an additional three (3) years for a total of six years, regardless of the number of employers the foreign professional works for during that time. Extensions beyond six years are available in limited circumstances.
Limitations: There are many technical requirements, including payment of a prevailing wage and the filing of a Labor Condition Application, for successful processing of an H-1B. Failure to comply with all of the H-1B regulations can result in the employer being disqualified for one year from hiring any additional H-1B specialty occupation workers, as well as other fines and penalties.
SPECIAL ISSUES FOR H-1B VISAS:
Credentials Evaluation: Foreign degrees must be evaluated to determine if they are the
equivalent of the U.S. degree. There are credentials evaluation services throughout the United States that provide these evaluations.
In addition, under USCIS regulations, three years of work experience can substitute for one year of bachelor’s degree level college education. If the employer relies on a combination of education and work experience to show bachelor’s degree equivalency, expert affidavits may be required to support the petition.
Prevailing Wage: The employer must pay the higher of the “prevailing wage” for the position as determined by United States Department of Labor (“DOL”), or the actual wage—that is, the wage paid to similarly employed U.S. workers. A prevailing wage determination can be obtained from the State Employment Security Agency or from authoritative surveys.
Labor Condition Application (“LCA”): This document attests to the DOL that the employer will pay the prevailing wage and that hiring the H-1B worker will not adversely affect the wages and working conditions of U.S. workers. The LCA must be certified by the DOL, and included in the H-1B application package.
The LCA process is now streamlined with the use of electronic filings. LCAs can be obtained in a matter of seconds. NOTE: The LCA is not the same as Labor Certification for green card purposes. For an LCA in connection with an H-1B, there is no need to advertise the job or to test the labor market for U.S. workers.
Posting: A notice must be posted for ten days in two different places at the location of
employment announcing that you are hiring an H-1B worker.
Public Access File: A Public Access File must be maintained for each H-1B employee, containing several documents, including the posting notice, proof of posting, the prevailing wage determination, the certified LCA, a receipt from the employee showing that he or she received a copy of the LCA, a statement of the actual wage rate, a short memorandum describing how the employer determined the salary and a summary of available benefits.
Filing Fees: USCIS normal filing fee for private employers is $460, plus a $1,500 “training fee”, plus a “fraud prevention” fee of $500. Premium processing (15 day processing) carries an additional $1,225 filing fee to the USCIS.
Transferring Employees to Other Locations: If an H-1B employee is transferred for more than a very limited duration, the employer must have an LCA from the DOL for the new location. If the employer transfers the employee before getting the LCA, the employer may need to file an amended H-1B petition with the USCIS.
Change in Job Duties: A material change in job duties may require a new H-1B filing. Any change in job duties should be reviewed by an immigration attorney.
Family: The spouse and children of H-1B employees receive H-4 visas and cannot work under that category.
Dual Intent: An H-1B visa holder may lawfully have the intent to remain permanently in the United States. This will be helpful for maintaining status while pursuing a permanent resident application.
H-1B Quota: USCIS issues 65,000 new H-1B approvals each year (CIS year – October 1 through September 30).
If you have any questions about the H-1B Specialty Occupation Workers visa, you can contact me, Somair S. Alam, Esq. at e-mail firstname.lastname@example.org