H1B (Professional Worker in Specialty Occupation)

DESCRIPTION:

The H-1B visa is a non-immigrant visa that enables U.S. employers to hire and temporarily employ foreign professional workers in specialty occupations. With the H-1B visa, the nonimmigrant workers may legally live and work inside the United States for a duration of 3 years, normally extendable to a maximum of 6 years. H-1B visa holders may bring their immediate family members (including spouses and unmarried children under 21 years old) to the United States as dependents under the H4 category. Such H4 visa holders may remain in the United States as long as the H-1B visa holder retains legal status. Under U.S. immigration law, Congress places an annual limit on the number of foreign nationals who may be issued the H-1B visa for each fiscal year. However, the law permits extra quota for foreign nationals whom possess a Master’s or higher degree from a U.S. university, and provides certain exemptions to the cap for non-immigrants who work at universities, non-profit research facilities or their related/affiliated entities.

Foreign immigrants may not apply for the H-1B visa by themselves. In other words, a U.S. employer must sponsor their petition.

REQUIREMENTS for H-1B:

In order for a nonimmigrant worker to qualify for an H1B visa, the sponsoring employer (Petitioner) must demonstrate that the prospective employment is a specialty occupation located in the United States, that the employer seeks to hire the nonimmigrant as either a full-time or part-time worker, and that the employer has the ability to pay the employee.  The employer must also abide by U.S. Department of Labor (DOL) regulations by submitting a Labor Condition Application (LCA) in order to ensure that the wage offered to the nonimmigrant worker meets or exceeds the “prevailing wage” in the area of employment. The prevailing wage is determined by the DOL’s National Prevailing Wage Center in Washington, DC. Wage determinations are based on many factors, including geographic location, job title, discipline, job duties, and required education.

The H1B visa application requires that a sponsoring employer offer a position to the nonimmigrant worker that qualifies as a specialty occupation. According to U.S. federal law, a specialty occupation is an occupation that requires theoretical and practical application of a body of specialized knowledge. Such specialized knowledge encompasses, but is not limited to: architecture, engineering, mathematics, physical sciences, social sciences, biotechnology, medicine and health, education, law, accounting, business specialties, theology, and the arts. Minimum entry into a specialty occupation requires that the foreigner have at least a bachelor’s degree in the specialty area from an accredited college or university.

In order for the foreigner to qualify for the job offer, he or she must possess a U.S. bachelor’s or higher degree in the specialty area from an accredited college or university, and such a degree must be required for the specialty occupation.  However, substitutions to U.S bachelor’s (or higher) degrees are permitted.  For instance, if the alien holds a foreign degree, that degree must be evaluated to determine its equivalency to a U.S. bachelor’s or higher degree in the specialty occupation. Moreover, if the foreigner holds an unrestricted state license, registration or certification authorizing him or her to practice the specialty occupation in the state of intended employment, such a license may also be substituted for the educational degree. Lastly, if an alien does not meet the educational requirements, he or she can substitute the degree requirement with professional training or experience in the specialty that is equivalent to having a degree in the specialty area.

PROCESSING:

Once the appropriate prevailing wage for a specific H-1B job occupation is determined, a Labor Condition Application (LCA) is filed with the DOL. This form binds the employer to pay the determined prevailing wage and offer the H-1B visa holder the same benefits as other employees.  After the DOL approves the LCA, the actual H-1B petition, in addition to other supporting documents and filing fees, can be filed with U.S. Citizenship and Immigration Services.  In order to process the H-1B visa application, an employer must provide a filing fee payable to the U.S. Department of Homeland Security. All new H-1B employments also require a payment of an additional anti-fraud fee (not applicable for H-1B extensions or amendments). For H-1B sponsored by for-profit entities, there are additional labor training fees. Under regular processing service, it may take several months for the USCIS to process the H-1B petition. However, applicants may expedite their H-1B process and receive a decision from the USCIS in 15 calendar days, by paying an additional “premium processing” fee to the government.

The H-1B worker must be treated as a W-2 “employee”, and cannot be paid as “independent contractor” or put on bench. Moreover, H1B is employer-specific, which means the H1B can only work for his sponsoring employer(s).  If the underlying job is terminated, the H-1B status ends. If the worker changes an employer or adds a concurrent job, he or she must file a new H-1B petition.  If the nature of employment has substantially changed, the filing of an amendment is required.   Under limited circumstances where there is a pending or approved immigration petition, the H-1B may be extended beyond the six-year limit.  Also, the H-1B professional’s time spent outside of the US may be claimed back.  Time is of the essence for many immigration matters.  Whenever there are sensitive status issues involved, consultation with an experienced attorney is always recommended.

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