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If you are an employer thinking about hiring foreign workers, or if you are a foreign national interested in working for a U.S. employer, you will find the following information useful:
Under the H-1B visa classification, an employer may sponsor temporary non-immigrant visas for alien professionals or specialty occupation workers with a bachelor’s degree or higher. The H-1B status is available for initial term of three years and can be extended for an additional three years up to a maximum of 6 years. Typical H-1B occupations include accountants, computer programmers, architects, engineers, doctors and college professors. There is an annual cap on number of H-1B visas issued. The current annual cap is 65,000. Additionally, there are 20,000 H-1B visas issued annually to the professionals with a master’s degree or higher. The U.S. Citizenship and Immigration Services begins accepting H-1B applications for the next fiscal year in early April (start date in early October). Because the number of available visas is limited, it is extremely important to get started on the process immediately upon the decision by the employer to hire the alien worker.
Must be a U.S. Employer. The employer must be a U.S. company with a federal tax identification number. Foreign businesses not established in the United States cannot use this visa to bring employees here.
File a Labor Condition Application. The employer must prepare and file a Labor Condition Application (LCA) with the Department of Labor (DOL). The employer must describe the position and salary. The LCA also requires the employer to attest to complex facts concerning the wage, working conditions, labor conditions and the giving of notice.
File a petition with U.S. Citizenship and Immigration Services. After the LCA is approved by the DOL, the employer must file a petition with U.S. Citizenship and Immigration Services (USCIS), a part of Department of Homeland Security. The employer must demonstrate that the position requires a person in a “specialty occupation.” This means a position that requires a minimum of a bachelor’s degree or its equivalent in experience and/or education in a specific field related to the job.
Maintain records. The employer must maintain a public access file containing information about the required wage to be paid to the H-1B worker and the posting of notice. The employer must also maintain wage and hour records, as well as information concerning working conditions for all similarly situated employees.
Pay costs. Employers are required to pay a fee for each H-1B application. If the employer terminates the services of the employee prior to the expiration of the H-1B status, the employer is also responsible for paying the employee’s return transportation to his or her last foreign residence.
Demonstrate qualifications. The employee must demonstrate that he or she has required qualifications for the specialty occupation and the specific job offered by the employer. The employee must be able to prove that his or her foreign university degree and/or work experience qualifies as the equivalent of a U.S. degree.
Maintain legal status. The employee must maintain lawful status in the United States. To maintain the current H-1B status, the employee must continue to work for the sponsoring employer. However, the H-1B visa holder may change employers if the new employer files a petition on his or her behalf. Under U.S. immigration laws, a person who fails to maintain lawful status may be deported and never allowed to re-enter the United States.
Individuals who currently hold a valid nonimmigrant visa may apply for H-1B status while in the United States. For example, a holder of F-1 student visa, may seek to change his or her status to H-1B. However, if the worker is overseas, or needs to travel abroad, he or she will need to apply for an H-1B visa at a U.S. consulate.
Attorneys at I.S. law Firm have helped many foreign nationals obtain H-1B visas, H-1B extensions, or change of status to and from H-1B status. To learn more about our services and for consultation, please contact us at (703) 527-1779 or via e-mail: [email protected]