H-1B Visas

Briefly, the H-1B visa is for people in a Specialty Occupation, which is defined as one that requires a 4-year degree or equivalent. It also includes fashion models of distinguished merit and ability, as well as someone providing a service related to the DOD (Department of Defense) cooperative research and development project. As with other visas, you must be coming here temporarily and not for permanent work. However, the H1b is part of a group of visas that allow for 'dual intent'. In other words, you can enter on a temporary basis with the visa and at the same time have the same employer or a different one apply for a Green Card on your behalf, which, when completed, would allow you to live in the US permanently. Unlike other visas, this visa does not require you to maintain a foreign residence.

There are 3 sets of filing fees the employer must pay for the H-1b visa case: The I129 fee is $320. Additionally, there is the $750 fee if the company has under 25 employees or $1500 if more than 25. Third, there is a fraud prevention and detection fee of $500. Fourth, if the employee is abroad, there are consulate fees, which are minor compared to these (but additional). The money orders are to be made out to the Department of Homeland Security. The fraud prevention fee has to be separate, the others can be combined. Certain educational institutions are exempt from the $1500 fee. Nonprofits must still pay the fee; spouses and children do not have to.

When an LCA (see below) is prepared, it will inform us of the 'Prevailing Wage' for the county in which the worker will work. The person must be paid 100% of that wage determination.

As you many know by now, there is an annual cap of 65,000 visas, less the ones for Chile and Singapore. As a result, there are only 52,800 H1b visas. There are an additional 20,000 available for people who have a Master's degree or higher from a U.S. institution of higher education. The good news is that anyone who received a visa in the past 6 years cannot be counted against this numerical h-1b visa cap.

The application deadline is, for all purposes, April 1st. This is for people who want to work as of October 1st of this year. If you haven't followed the H1b visa trail lately, the application period begins on April 1st, but on that day they receive so many h1b applications that they exceed the amount they can give out and as a result we have an h-1b lottery and they have to choose a certain number of applications from the pool.

Students who have been approved an h-1b visa petition and apply for a Change of Status will receive work authorization extension that takes them to October first so that they are not caught in a 'gap'. The spouse and children will also have legal status during that time period.

An employer is not able to file more than one petition for an h1b, even if one is for the 20,000 for people with a higher degree and one is in the category for people without that benefit.

The employer must be a U.S. employer but does not have to be the one paying the person's salary.

The H-1b offers portability. In other words, an h1b candidate may work for a different h1 employer. As long as the new employer and case are legitimate, filed before the expiration of stay previously authorized, and no illegal work has been conducted (ie without authorization). The person can work for the new employer as soon as the h1b application has been received by the USCIS (as it may take time for the case to be adjudicated).

If the applicant has a criminal record, a waiver may have to be filed: Click here for more info

SPECIALTY OCCUPATION

A Specialty Occupation is defined as one that requires both a theoretical and practical application of a body of highly specialized knowledge and requires the person to have attained a Bachelor's degree or higher (or equivalent) OR the work is so complex and specialized that one can assume the knowledge needed to execute the job position that a degree is required.

TECHNICAL REQUIREMENTS

There are several technical requirements to an H-1B visa case. An LCA (Labor Condition Application) must be prepared and a wage survey must be completed. The government has set guidelines as to how much you should be paid, and each job title is dependent on the particular county in which you will work.

The LCA demands that an employer pay you at least what other people in a similar position are being paid. If your employer is highly dependent on H-1B’s or is a willful violator, he or she or it must follow a different set of requirements when the LCA is filed. The amount you make is classified as wages in that they are labeled ‘earnings’ for income tax and FICA (Federal Insurance Contribution Act=Unemployment Insurance). Fringe benefits are not included within the wage rate. Also there cannot be a strike or lockout in progress, and this is attested to in the LCA.

A final important issue is that the employer must have a Federal Tax Identification number, which is basically a Social Security number for a business, in order to file. If your employer is a small or new business, you need to advise them to get this number as soon as possible; sometime they are able to get this number over the phone.

PERMANENT BUT TEMPORARY POSITION

The position waiting for you needs be a permanent position that is temporarily available.

WHAT TYPE OF POSITION CAN IT BE?

There are numerous positions that have been permitted and many other positions have cases to support them. This list is so large that it cannot possibly be reproduced here, but here are some of the most common positions that people ask about and are included:

Acupuncturist; Chiropractor; Dietician; Graphic Designer; Human Resource Manager, Industrial Engineer, Interior Designer; Journalist; and Medical Technologist. The standards do, of course, apply to positions such as teachers, lawyers, accountants, engineers, and so on, but list above are some of the interesting ones people ask about. Know though, that is some of these positions, you are required to be licensed in the specific state or area you are in, and that must be followed.

There are many more issues related to the H-1b visa and we would be delighted to answer them for you if you are looking to hire an attorney to prepare your case. There is still time to create it before April 1st but please don't wait until the last minute; call now.

 

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