H-1B Temporary Worker Visa

U.S. businesses use the H-1B visa program to employ foreign workers in specialty occupations that require theoretical or practical application of a body of highly specialized knowledge, including, but not limited to: scientists, engineers, or computer programmers. In other words, the H-1B visa is for professionals with at least a bachelor’s degree or equivalent experience. The H-1B visa permits a stay of up to 6 years for the professional worker and dependent family members (H-4 visa). Note that there is a cap of 65,000 H-1B visas, plus 20,000 more for those holding advanced degrees. As a result, H-1Bs normally run out between April and October each year.

– Requirements

1. The H-1B job is in a specialty occupation that requires at least a bachelor’s degree.
2. The H-1B worker holds a bachelor’s degree or higher, or the equivalent experience, in the appropriate field.
3. The employer will pay the prevailing wage for the H-1B position.

– Filing Process

1. Filing LCA
The prospective employer files a labor condition application (LCA) (Form ETA 9035) with the US Department of Labor (DOL). In the LCA, the employer certifies the worker will receive the prevailing wage or higher, that there is no strike or lockout at the place of employment, that working conditions will not adversely affect U.S. workers, and that notice has been provided to the union or workers at the place of employment. If the LCA is certified for multiple workers, you must provide the name and USCIS case receipt number of any foreign worker who has previously used the LCA.

2. Filing I-129 Petition
The prospective employer files an I-129 H-1B Petition for a Nonimmigrant Worker with USCIS.

Note:

• If the H-1B worker holds a foreign degree, the degree will need to be evaluated to see if it is the equivalent of a U.S. Bachelor’s degree. The petitioner must submit evidence of the beneficiary’s education credentials at the time of filing. If all of the requirements for a degree have been met, but the degree has not yet been awarded, the petitioner may submit a copy of the beneficiary’s final transcript; or a letter from the registrar confirming that all of the degree requirements have been met.
• Three years of progressively more responsible work experience counts towards one year of university education.
• Premium processing is available to guarantee a decision in two weeks (unless there is a request for additional evidence) with costs $1,225.

3. If the H-1B worker is already in the United States in valid nonimmigrant status, then this worker may be able to change status in the United States through the I-129 H-1B petition.

4.  A candidate outside the United States must apply for an H-1B visa at a US Consulate.
5. Upon entry, the H-1B worker will be given a stay that ends when the need for the worker ends, as stated in the nonimmigrant visa petition, for a maximum of three years. H-1B status may be extended for a total of six years, or longer, if a labor certification application has been timely filed.

– H-1B Cap

1) Regular Cap (use this code for petitions subject to the 65,000 regular cap, not including Chile/Singapore cap cases)

2) C/S Cap (use this code for Chile/Singapore H-1B1 cases)

3) U.S. Master’s (use this code for petitions subject to the 20,000 exemption for beneficiaries with U.S. master’s degrees or higher)

Currently, there are 65,000 H-1B visas available each year, with some of these set aside for free- trade programs with Singapore and Chile. In addition, an advanced degree exemption is provided for the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master’s degree or higher. Once that limit is reached, any petitions filed for beneficiaries with a U.S. master’s degree or higher will count against the regular cap, unless exempt for other reasons. This is the number of petitions that USCIS has accepted for this particular type of cap. It includes cases that have been approved or are still pending. It does not include petitions that have been denied.
It is recommended to start preparing H-1B visa petitions starting in February, so that they are ready to file April 1.

– H-1B Cap Exemptions

Certain petitions are not subject to the H-1B visa cap. These include petitions by institutions of higher education, affiliated nonprofits, or nonprofit or governmental research organizations; petitions for current J-1 holders who have obtained a waiver through the State 30 program; and petitions for extensions of stay or new employment where the person has already been counted in the last six years and the person has not been out of the country for a full year.

– H-1B Alternatives

In the event that the cap is reached early and the employer does not qualify for an exemption, you will need to seek an alternative to the H-1B visa, such as:

1. Optional Practical Training (OPT) for students: Generally foreign students in Bachelors and Master’s degree programs are allowed one year of full-time off-campus work on F1 OPT.

2. L visa: Organizations in the U.S. with a related entity abroad (parent, subsidiary, branch or affiliate) may transfer managers, executives and those with specialized knowledge to work for the U.S. entity on an L-1 visa. To be eligible, the employee must have worked for the foreign entity for at least one continuous year during the last three years of employment.

3. E visas (Treaty Traders (E1) and Investors(E2)) (for nationals and firms of a country with a trade treaty in place)

4. H-2B Seasonal Workers: If the need for the worker is of limited duration, usually less than a year. However, H-2B petitions may only be approved for nationals of countries that are designated as being eligible to participate in the H-2B program. Please see Nonimmigrant/ Seasonal Worker Visa (H-2B).

5. H-3 visa to receive training: The employer must demonstrate that the training is not available in the foreign national’s home country and the training will benefit the foreign national in pursuing a career outside the U.S. H-3 trainees may be allowed to remain in the United States for up to 2 years. Spouse and children under the age of 21 of an H-3 trainee may accompany the trainee to the United States under H-4 visas.

6. J Exchange Visitors (Interns and Trainees may qualify) The Spouse and unmarried children under the age of 21 of a J-1 visa holder may come and live in the U.S. on J-2 visas. Dependents of a J-1 visa holder may also work in the U.S. if they receive special permission from the USCIS and can confirm that employment is not needed to support the principal J-1 visa holder.

7. O-1 visa: for extraordinary people who are the “best” in their field such as artists, entertainers, athletes, scientists, researchers and business people.

8. Q Cultural Exchange (if there is a cultural exchange component to the work)

9. R Religious Worker (religious positions)

10. Starting the Green Card Process: Getting a green card (U.S. lawful permanent residence) takes far longer than getting any nonimmigrant visa or status. However, if you qualify for an employment-based green card category in which there is currently no backlog and for which no labor certification is required, it may go ahead and start the green card process.