Immigration Lawyers LA (Los Angeles): Non-Immigrant Visas: H-1B Visa

NON IMMIGRANT H-1B VISA

General Overview Of H-1B Work Visa

An H-1B visa allows immigrants to come to the United States to work temporarily. H-1B visas are classified as non-immigrant visas, which mean that they do not grant residency to those who hold them. There are several unique things about this. For one thing, workers themselves may not apply for them. Instead, an employer must initiate the H-1B visa process. In fact, the entire visa process is out of the hands of employees. Another important thing to keep in mind about the H1-B visa is that there are many requirements involved in getting one. Learn more about the H-1B visa application process, requirements and other information below.

For many people, this is used as a way to get started with obtaining U.S. citizenship. However, this should not be confused with a green card. It is completely different. By definition, an H-1B work visa is designed to allow U.S. companies to temporarily hire foreign workers. Technically, the H-1B is supposed to help employers fill in the gaps in the U.S. workforce. In other words, H-1B jobs are reserved for positions that cannot be filled by American workers.

The H-1B visa process is long and involved. It can't be initiated by the employee. The only way for a foreign worker to obtain this is through a petition that is initiated by a U.S. employer. There are strict limits in place regarding the number of visas that can be approved each year. While more than 100,000 H-1B visa applications are filed each year, a considerable number of them are not approved. It should also be noted that H1B exceptions regarding people who hold high-level degrees, people who work at colleges and universities and free trade agreement situations also exist.

How Long Is An H1-B Valid?

Not surprisingly, this visa does not last forever. Initially, H-1B sponsorship can be valid for up to three years. At that point, the visa may be extended for another two years. When five years have passed, the H-1B may be extended for one additional year. In total, H1-B jobs can last up to six years. No additional extensions are permitted after that time, and the employee must return to his native country. The same individual will not be eligible for a new H-1B until he has stayed back in his country for at least one year.

H-1B Visa Requirements and How to Apply for it

There is a lot of confusion out there about the requirements for obtaining an H-1B. The following information should clear up a lot of the confusion and provide more specific information:
  • Employers Initiate the H-1B Visa Process - If you are looking for a way to apply for a visa, you are out of luck. Employees may not apply for these types of visas, and they are not granted to specific employees. Instead, they are granted to employers. To obtain one, you must locate an employer first.
  • Lack of Eligible U.S. Workers - The entire point of this process is to allow employers to seek foreign workers for positions that can't be filled by U.S. workers. This situation usually occurs when extremely specialized training and knowledge is required. The employer must be able to demonstrate that they are unable to find U.S. residents who have the skills, education or training that is necessary. There is no point in initiating the H-1B application process if the necessary workers can be found in the United States.
  • Education - There are stringent educational requirements in place for H1-B visas. These types of visas are designed for specialty occupations. In most cases, an extensive educational background and impeccable credentials are required. The minimum that is needed is a bachelor's degree or its equivalent. One notable exception is that fashion models do not need to have this type of educational background. An important part of being approved for an H-1B visa sponsorship is being able to prove that the appropriate level of education has been attained.
  • Licensing - A part of the H-1B visa process is receiving approval from the Department of Labor of the state in which employment will occur. In some states and in some occupations, special licensing is required. The H-1B visa application will be denied if the employee does not hold the appropriate licenses or certificates. All of this information is thoroughly investigated, so employers need to make sure that prospective employees have what is necessary to be approved for H-1B. Otherwise, the application will be denied and the person will not be permitted to work in the United States.
  • English - In order to be approved, the prospective employee must be able to speak and read English. This is another hurdle that an employee must pass in order to get through the H-1B visa process. This is also true about obtaining an H-1B transfer, even though the person in question would have demonstrated their ability to speak and read English in the past.
  • Specific Activities - H-1B visas always outline the specific activities that an employee is coming to the U.S. to perform. Therefore, individuals who are approved must not stray beyond those specific activities. If an employer would like to change the job duties of an H-1B employee, it must petition for a new visa first. This rule is in place to prevent employers from hiring foreign workers to fill roles that can't be filled by U.S. workers and switching them to other types of jobs later.

The H-1B Application Process

As noted several times, the H-1B visa process must be initiated by the employer. The specific steps that are involved in the process are outlined below.
  • A Wage Determination Form must be filed by the employer with the local state's Department of Labor. This form is used to ensure that the employer will be paying the prospective employee the prevailing wage for the type of work that will be performed. This is to prevent employers from using H-1B visas to avoid paying higher wages for positions that require extensive amounts of education, experience and skill.
  • Form ETA 9035 or a Labor Condition Application must be filed by the employer with the United States Department of Labor. The LCA must be certified by the Department of Labor before the H1B petition can be filed.
  • The employer files form I-129, which is the actual petition that is needed to fill jobs. The petition must be filed with United States Citizenship and Immigration Services. Once the petition is filed, it generally takes anywhere from two to five months for a decision to be made regarding an H-1B work visa.

Additional Information About H-1B

The provision for H-1B visas is found in section 101(a)(15)(H) of the Immigration and Nationality Act. This type of visa permits a foreign worker to work in the United States for a specific period of time. Spouses and children up to age 21 are permitted to live with a worker who has an H-1B, but they are not permitted to work themselves without their own work visas. However, spouses and children are allowed to attend school in the United States while living with a person who has obtained an H-1B work visa.

In the case of an H-1B transfer, various stipulations apply. If an employee quits or is dismissed but would like to stay in the United States and work for a different employer, that employer must request an H-1B transfer. Otherwise, the worker must obtain a different non-immigration status or leave the country. If the employee is dismissed before their visa expires, their employer must pay their travel expenses to get them back to their home country.

Occupations That Are Typically Held by People With H-1B

An H-1B is designed for specialty occupations that require the use of highly specialized skills or knowledge. People who are approved for such visas typically work in the following industries: mathematics, accounting, medicine, architecture, biotechnology, engineering and the physical sciences. In some cases, a worker may be able to obtain an H-1B transfer in order to stay in the U.S. to work for another company within the same industry. However, the H-1B visa process must be initiated by the new employer; there is nothing that the employee can do to get the process started.

Conclusion

H-1B visas are not easy to obtain. Due to caps, only a specific number of H1B applications can be approved each fiscal year. Employers that are familiar with the process have a much easier time getting the application approved than those that never hire foreign workers. It is well worth it for foreign workers to have in-depth knowledge about H-1B visa requirements and to know how to apply for H-1B visas as well. Individuals who would like to remain in the United States after their visas expire should apply for green cards well before the time comes. In many cases, it is easier to be approved for a green card when an H-1B visa has been issued in the past.
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