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The H-1B visa joins other U.S. temporary worker visas such as the L-1, TN, O-1, and OPT. The H-1B visa program gives U.S. employers the opportunity to temporarily employ non-immigrant foreign workers in a variety of specialty occupations. Read on to find out more about the H-1 B visa’s: Specific Requirements, Application Cap, Duration of Stay, and Permanent Residency (Green Card).
This section will provide information on what is needed to obtain an H-1B visa in more detail.
For a valid employer-employee relationship, the U.S. employer must show that they control the employee. This means that the U.S. employer applying for the H-1B visa petition may hire, fire, pay, and supervise the employee.
When the U.S. employer applies for an H-1B visa petition so that they may hire foreign workers, they must fill out and submit Form I-129 (Petition for a Nonimmigrant Worker). The job being created must be classified as a specialty occupation. There is a list of specialty occupations provided on Form M-746 (Dictionary of Occupational Titles) that qualify for an H-1B visa. This list of eligible occupations covers professional, technical, and managerial occupations. The list also covers a few additional occupations such as Sale Promotion Occupations (Fashion Models) and Miscellaneous (Interpreters, Airline Pilots, etc.).
One of the following criteria must be met for the job to qualify as a specialty occupation:
The occupation requires an employee with at least a bachelor’s degree or higher
The degree requirement is common for this occupation. This means according to the industry standard, the job is relatively complex and requires special training or preparation.
Basically, in order to qualify for an H1-B visa, the U.S. employer must show that the job requires a worker with specialized knowledge and a relevant post-secondary degree or its equivalent.
A valid employee for an H-1B visa must be able to show that his or her degree is relevant to the job offered by the U.S. employer. This can be proven by providing:
Evidence that other companies in the chosen industry require a similar degree to the one the employee has.
An explanation of the job’s specific duties and the complex nature of the tasks performed in the job. It should be shown how the employee’s degree is related to these duties.
A fact sheet from online resources that shows the occupation’s associated degree fields or written opinions from experts in the field
There is a wage database maintained by the U.S. Department of Labor which has detailed information for prevailing wages. It must be demonstrated that the employee will be paid the appropriate wage for the occupation on offer. The U.S. employer must pay any H-1B employees an equal wage to any other individuals performing a similar job.
For employees already working for their U.S. employer, you could submit recent paystubs to show that the minimum wage requirement has been met. For employees that have yet to start working for their U.S. employer, the company should provide a letter detailing the wage being offered to the H-1B visa holder.
H-1B visas are in limited supply and it is possible that there may not be any remaining spots available. If this is the case, the application will not be accepted until the cap is reset the following year.
As mentioned above, H-1B visas are limited to an annual cap. The cap is set at 65,000 visas offered during every fiscal year. For the 2017 cap, the U.S. government will begin accepting H-1B visa petitions on April 1, 2016. Once the cap has been met, new applicants will have to wait until the cap resets before applying.
There are exceptions to the yearly cap for certain types of applicants. One such exemption (limited to an additional 20,000) is given to those with a Master’s degree or higher.
Another exemption is given to H-1B workers who are employed at:
An institution of higher education
A non-profit research organization
A government research organization
There are even country specific exemptions to the cap for countries who have specialized free trade agreements with the U.S. These countries include Singapore and Chile.
It is advisable to have an application ready to submit when the cap re-opens in April. For example, for the fiscal year of 2015, over 172,500 applications were received. The demand for H-1B visas greatly exceeds the supply.
A successful H-1B visa applicant can initially be admitted to the U.S. for a period of 3 years. This is the maximum validity on offer and it is always possible to receive a shorter expiration depending on the circumstances. In addition, the H-1B visa may be extended, but this extension is limited. In most cases, an H-1B visa cannot be active for more than 6 years. However, it is possible to exit the U.S. for a minimum period of 1 year and then re-apply for a new H-1B visa.
The other advantage of the H-1B visa applies if your U.S. employer ends your contract before the end of the period authorized for your stay. In this case, the employer must cover the expenses of your return transportation (within reasonable limits). This only applies if the employer ends the contract and does not work if you resign from the job.
There is a term in immigration called “dual intent”. This applies to foreign nationals who are in a country on valid temporary visa status but who are also pursuing permanent resident visa status at the same time. While this may seem paradoxical, it is perfectly legal.
One of the main reasons for the H-1B visa’s popularity is that it allows its holder to have dual intent. Most non-immigrant temporary visas do not allow this dual status. This means that even though the H-1B visa grants temporary status, the work experience gained from it can be used to obtain permanent resident status.
The U.S. has a program for those who want to obtain permanent residence known as the employment-based Green Card. Basically, an employee working on an H-1B visa can use his or her U.S. work hours to help them qualify for a Green Card. The paradox here is that the employee must be employed on a temporary basis when in fact he or she is working towards never leaving the U.S.
Because of the allowance of dual intent for H-1B visa holders, the employment-based Green Card process has experienced significant processing backlogs. It used to take 2 to 3 years to receive approval on a Green Card application based on employment (less than the initial validity of an H-1B visa). Currently this processing time has skyrocketed. Therefore, many H-1B visas holders apply to extend their initial visa so that they may remain in the U.S. until a decision has been reached on their Green Card application.
Assembling an H-1B visa petition requires numerous forms and supporting documentation. The standard main form for an H-1B non-immigrant visa is 36 pages long and asks for information related to:
U.S. employer details
Beneficiary (employee) details
Wage and benefits
Education levels
Cap exemptions
Occupational duties
Furthermore, many U.S. employers will file a “blanket petition”, which means that multiple non-immigrant workers will be hired. As opposed to an “individual petition”, a blanket petition allows multiple applicants to apply under the same application.
If you are a U.S. employer or a foreign worker who is interested in apply for an H-1B visa, contact our legal team today! Our team of experienced U.S. immigration lawyers and consultants can help you negotiate the application process and submit a complete, professional application.
With Akrami and Associates there is always a way!!
