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H-1B Temporary Worker Visas
See also: Employer Options
HOW TO OBTAIN A H-1B VISA AS A SPECIALTY WORKER
1. Benefits of the H-1B visa program.
The H-1B is a nonimmigrant visa that allows a foreign worker in a "specialty occupation" to work in the U.S. for a period of up to six years ( see also Temporary Visa Options for Foreign Physicians ). Workers who seek permanent residence in the United States often choose the H-1B as their first step on the way to that goal.
2. Which occupations qualify as "specialty occupations"?
The law defines a specialty occupation as one that requires the theoretical and practical application of highly specialized knowledge and for which attainment of a baccalaureate degree (or its equivalent) is a minimum for entry into the occupation in the U.S. The degree obtained must correspond to the "specialty occupation" (for example, a B.A. degree in Business Administration does not "match" a programmer position. It does match a business manager position.)
3. Which credentials are needed?
In order to qualify for a specialty occupation, the worker must have:
- Full state licensure to practice in the occupation, if such licensure is required for that occupation (Be aware, however, that requirement of a state licensure does not in itself classify the occupation as a specialty.)
- A bachelor's or higher degree in the specific specialty "field" of study (Some professions may require higher degrees than baccalaureate); or:
- Experience in the specialty field equivalent to the completion of such a degree, and furthermore, recognition of expertise in the specialty area through progressively responsible positions relating to the specialty. Equivalency can be determined in a number of ways, including evaluations by authorized personnel in the field, or through the INS's "three-for-one" (three years experience matches one year of school) rule. Even so, practical experience cannot substitute for a higher degree than baccalaureate.
4. Proof of eligibility- A word about documents.
In order for the prospective specialty employee to prove that he is indeed a member of a specialty profession, he must present adequate documentation. In most cases, this involves presentation of the employee's resume, as well as copies of diplomas (of his/her most recent degree), and school transcripts. If any of these documents are in a foreign language, exact word-for-word translations must be submitted along with the copies. If there is any doubt as to the equivalency, it is advisable to have the foreign degree evaluated by a qualified credentials evaluator.
5. Process.
As the H-1B visa pertains to a specific job rather than a specific person, the employer provides most of the necessary documentation. The employee's task is mainly to submit evidence of his/her training/experience in the specialty field, as described above. The employee might also be required to submit the following:
- A resume, containing a overlook of the employee's employment history and education.
- Letters from previous employers and/or professors.
- Copies of all passports, visa stamps, and I-94 forms.
- Copies of I-20, IAP-66 and work authorization cards.
- U.S. Social Security Number (If you already have one.)
- Foreign Address.
Further information might be required, depending on the nature of each individual case.
6. The employer.
The employer has to file a Labor Condition Application (LCA) with the Regional Office of the U.S. Department of Labor. The LCA includes a description of the position in terms of wages, working conditions and other information. Once the LCA has been approved, the employer must file a Petition for Nonimmigrant Worker with the Immigration and Naturalization Service (INS.) With this petition, the prospective employee must, if he/she is already in the U.S. in valid nonimmigrant status, request a change of nonimmigrant status. If the employee is outside of the U.S., he/she must apply for an H-1B visa at a U.S. consulate abroad (see "Consular Application for Nonimmigrant Visas.")
Employer Options
H-1B VISA PROGRAM: BENEFITS & REQUIREMENTS
1. What is an H-1B Visa?
The H-1B is a nonimmigrant visa that enables foreign workers in "specialty occupations" to work in the U.S. for a period of up to six years.
2. Requirements.
First, the employer must qualify as a U.S. employer and demonstrate the ability to pay the offered wage. Second, the prospective employee must qualify for and intend to work in what is called a "specialty occupation". Basically, a specialty occupation is a professional position. The law defines a specialty occupation as one that requires the theoretical and practical application of highly specialized knowledge and for which attainment of a baccalaureate degree (or its equivalent) is a minimum for entry into the occupation in the U.S. If necessary, experience can be recognized as equivalent to a baccalaureate degree.
In short, the occupation must fulfill the requirement of being a "specialty". The employee must have credentials pertaining to that specialty, and the employer must be able to pay the required wage.
3. Application Process.
The process of obtaining an approval for an H-1B nonimmigrant visa involves three basic stages. You will note that it is not necessary to place an advertisement for the position, nor is it necessary to prove that there are no available U.S. workers.
a. Prevailing Wage Information.
This first step requires the employer to obtain documented information regarding the prevailing wage for similar positions in the same geographical location as that in which the alien will be employed. The employer must pay the alien at least 95% of the prevailing wage or the actual wage, whichever is higher. This process takes approximately 1-2 weeks. During this period, it is advisable for the alien to obtain all necessary documents.
b. Labor Condition Application.
The second stage of the application process requires the employer to file a Labor Condition Application (LCA) with the Regional Office of the U.S. Department of Labor. It takes approximately 1-2 weeks to receive an approval from the LCA. The LCA includes a description of the position in terms of wages, working conditions, etc. Copies of the signed LCA must be posted in two locations on the employer's business premises, including instructions for filing complaints. Furthermore, the employer must maintain wage and hour records, as well as information regarding working conditions for similar positions. This information might later be requested for inspection by the DOL's Wage and Hour Division. Non-compliance with these rules or failure to pay the required wage may result in penalties for the employer. These include back pay, fines and possibly loss of right to apply for all immigrant and nonimmigrant visas for up to one year.
c. Petition for Nonimmigrant Worker.
The next step in the H-1B process is the employer's filing of an I-129 Petition for Nonimmigrant Worker with the Regional Office of the INS. The petition includes detailed information about the employer, the position, and the prospective employee (see Document Checklist, below.) The documentation must confirm that the position requires a "specialty worker", and that the prospective employee qualifies as such a person. Approval from the INS may take about 4-6 weeks. If the employee is already in the U.S. in valid nonimmigrant status at the time the petition is filed, a request for change of nonimmigrant status must be filed along with the petition. If the employee is outside of the U.S., he may apply for an H-1B visa at a U.S. consul abroad, once the petition is approved by the INS (see "Consular Application for Nonimmigrant Visas.")
4. Length of Stay.
The initial H-1B visa may be granted for a period of up to three years, with a two and then a one year extension for a maximum of six years. After reaching the maximum allowed stay, the alien must live outside of the U.S. for one year before being allowed to obtain another H or L visa. However, the employee can prepare for a "green card" while still in H-1B status
5. Travel Costs in Case of Dismissal.
Should the employer for any reason choose to dismiss the employee before the end of his period of H-1B status, the employer is liable for reasonable costs of transportation to the employee's last foreign residence. This rule does not apply if the employee voluntarily resigns.
When filing a Petition for Nonimmigrant Worker, the following documents must accompany the completed I-129 form:
- Labor Condition Application, accepted by the DOL;
- Description of the position involved, describing it as a specialty occupation;
- Proof of employee's qualifications and copy of required license or other official permission to practice in the occupation, if applicable;
- Employee's resume;
- Copies of all passports, visa stamps, and I-94's, if applicable;
- Copies of work authorization cards, I-20 and IAP-66 forms, if applicable;
- Social Security Number;
- Foreign address;
- Copy of employment contract or summary of employment terms;
- Financial information on employer to document ability to pay offered wages.
RO 9/95 NZ/KC 8/01
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