H-1B VISAS

OVERVIEW

The H1B visa program is the primary method for employers to recruit & hire international professionals to work in the USA. The H1B visa enables U.S. employers to hire foreign professionals for an initial period of three years and up to a total of six years, and in certain instances beyond six years.

 

One of the things that makes the H1B so desirable is that, unlike many other nonimmigrant visa categories, it is a “dual intent” visa. This means that a visa will not be denied simply because a person 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.

 

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 needs to verify that the H1B visa worker is being paid the prevailing wage for the work being performed and that employment of a foreign worker is not harming conditions for US workers.

 

H1B Visa Qualifying occupations include the following:  engineer, architect, teacher, professor, computer programmer,  financial analyst, accountant, market research analyst, public relations manager, advertising manager, marketing manager, art director, creative director, copywriter, lawyer, management consultant, scientific researcher, graphic designer, interior designer, industrial designer and human resources administrator.

Question: I am being offered a position in sales.  Does this qualify me for and H-1B visa?

 

Answer: Normally, a position in sales is not a “specialty occupation” and therefore does not qualify a person to obtain an H-1B visa.  There are, however, are many instances where a sales position does require an extensive body of knowledge, and would qualify for an H-1B.

The length of time that a worker can have an H1B visa is usually an ‘initial’ period of up to three years. The initial H1B visa can then be extended one time for up to a combined total of six (6) years.
Other regulatory provisions permit;
(1) the employer to request a period of less than three years,
(2) the employee to be employed on a part-time basis
(3) the employee to work for more than one US Employer simultaneously.

 

The H1B worker’s family may also be permitted to live in the US during the period that the H1B visa is in effect, but can not be a paid employee while on an H4 visa. An H1B holders Spouse and children (under the age of 21) can move to and live in thh US with the H1B holder – but they can not work unless they obtain their own work visa.

 

During the term of the H1B visa the employee can also apply for permanent residency. This is called “Dual Intent“, and is a privilege some other U.S. visas do not enjoy.

 

The H1B Cap – quota of H1B visas issued each year
The number of H1B visas issued each year is subject to a cap that is determined by US Congress. The current H1B cap is set at 65,000 plus an additional 20,000 for professionals with an masters degree or higher from a U.S. institution of higher education.

 

The H1B cap does NOT include or affect:
1) current H1B holders transferring their visa to a new employer / sponsor
2) ‘new’ applications for an H1B with: non profit organizations, Government Research organizations, and institution of higher education.

 

Basic Required Documentation for H1B visa

  • University diplomas and/or transcripts
  • High school diplomas if the worker has no university education
  • Detailed resume/CV
  • Job letters from previous employers, if needed
  • Job offer letter from U.S. employer, detailing duties and proposed salary.

WHO QUALIFIES FOR AN H-1B VISA?


To qualify for an H-1B, you must have
ONE of the following

1) A Bachelor’s degree or higher in the area of the specialty occupation (or the foreign equivalent degree from your Country), OR

2) 12 years work experience in the specialty occupation, OR

3) A combination of post-secondary education and work experience which is the equivalent to a bachelor’s degree.  The H-1B requirements for individuals with a combination of post-secondary education and work experience are as follows:  Your education and work experience must total 12 points.  For every year of university completed you get 3 points and for every year of work experience, you get one point.  For example, if a person has completed 2 years of university she has 6 points.  Therefore, to qualify for the H-1B she needs to show that she has 6 years of work experience.

Question: I am a graphic designer and have 2 years of university and 8 years of self employment.  Does my work as a self-employed graphic designer count?

Answer:  Yes, but you would have to document the self-employment by letters and/or affidavits from clients and other proof that you have worked as a graphic designer. 

Question: I have a bachelor’s degree in history and a U.S. company is hiring me as a market research analyst?  Do I qualify for an H-1B visa?

Answer: That depends.  Just having a degree doesn’t automatically qualify a person for an H-1B visa.  Normally USCIS issues H-1Bs for business-related occupations to those with degrees in business, finance, marketing, etc.  The degree should be in the area of the occupation, but there are instances where a liberal arts degree will qualify.

H-1B PROCESSING

H1B visa applications can be filed by U.S. employers by one of 2 methods:
– H1B Regular Processing, or
– H1B Premium Processing (15 day processing time)

The difference is that H1B Premium Processing is a faster method to obtain an H1B visa
. However, the US Government does charge an extra fee of $1,225 for Premium Processing.

Regular Processing is a more cost-effective method but it takes longer. There is no set timeframe for a visa to be processed by the USCIS when filed through Regular Processing (it can take anywhere from 1 month to 6 months)



H1B Visa  Application Process:

1. Offer & Acceptance of H1B Employment – H1B Sponsoring Company files a petition on your behalf.
An employer can be an individual, partnership or corporation . Applications are “job specific.” If you change employers, your new employer must file a new H1B visa petition. The visa is only valid for work with the employer that filed the original petition. The USCIS requires employment letters which provide:
» Specific information addressing the positions held
» The exact duties of the position
» The exact dates of employment
» Information regarding the supervisors and co-workers of the beneficiary.

 

2. The ‘Prevailing Wage’ and actual wage must be determined and compared. The H1B sponsoring company is required to pay the higher of the two.

The prevailing wage is determined by the Department of Labor.   .

 

3. File the Labor Certification Application (LCA).

This is a form that contains information about the H1B sponsoring employer and the proffered salary. By completing and signing the form, the sponsor company is agreeing to pay the prevailing wage, that the employment of this individual will not adversely affect the conditions of other workers and that there is no strike for their occupation at the workplace. The LCA approval process takes approximately 7 days.

 

4. When the LCA is approved, the Department of Labor (DOL) will issue a certified copy to the H1B sponsoring company.

 

5. The sponsor company must post notices at two conspicuous places at their business of the H1B visa filing for 10 days or provide notice of the filing to the collective bargaining representative for their employees.
The LCA form can be used for the actual posting as well. After the Department of Labor accepts the LCA, then your employer can file your H1B visa petition.

 

6. H1B Petition is assembled and then filed with appropriate USCIS Service Center.

The filing must include the required forms, fees, documents and information; form I-129 and the H supplements, education & experience evaluation & documents, training certificates, professional memberships, employment agreement and letter of support.

 

7. Receipt issued by USCIS
The petitioner (sponsoring company) is sent a receipt by the USCIS Service Centre which bears a 9 digit reference number pertaining only to that particular case, H1B processing times and general information about the petitioner and foreign worker. This is the petitioner’s first confirmation that the petition is in the adjudicating queue.

 

8. Wait for the H1B petition to be processed.
Processing times vary depending upon service center but normally take one to six months. Employment cannot begin, however, until a USCIS approval.

 

9. Petition Approval
An approval notice (Form I-797) is issued to the petitioner. The Form I-797 shows dates of validity for the foreign worker to work in H1B status for the petitioner .

 

10.  Change of Status or Consular Processing:

a.  Change of Status:

If the worker is in the U.S. in another visa classification, he can change status in the U.S. and upon the H-1B approval, his status is automatically changed from the previous classification to H-1B.

 

b.  Consular processing:  If the H-1B worker is outside the U.S., she then applies for the visa at a U.S. Consulate.  The consular process takes up to one week.

Once the passports are returned with valid H1B visa stamp, the Consultant and his/her family may enter the U.S. in ‘H’ status.