H-1B Visa

Content

• Introduction to H1B visas
• Can my company make H1B visa applications?
• Does the candidate qualify for an H1B visa?
• I want to apply for an H1B visa
• FAQ for H1B visas

Introduction to H1B visas

The United States H1B visa is a non-immigrant visa, which allows a US company to employ a foreign individual for up to six years. As applying for a non-immigrant visa is generally quicker than applying for a 'Green Card', staff required on long-term assignment in the US are often initially brought in using a non-immigrant visa such as the H1B.

Individuals can not apply for an H1B visa to allow them to work in the US. The employer must petition for entry of the employee. H1B visas are subject to annual numerical limits.

The H1B visa is designed to be used for staff in "speciality occupations", that is those occupations which require a high degree of specialized knowledge. Generally at least the equivalent of a job-relevant 4-year US Bachelor's degree is required (this requirement can usually be met by having a 3-year degree and 3 years' relevant post-graduate experience). However, professionals such as lawyers, doctors, accountants and others must be licensed to practice in the state of intended employment – e.g. a lawyer must generally have passed the relevant state bar exam.

Non-graduates may be employed on an H1B visa where they can claim to be 'graduate equivalent' by virtue of twelve or more years' experience in the occupation.

Positions that are not "speciality occupations", or for which the candidate lacks the qualifications/experience for an H1B visa, may be filled using an H-2B visa. The disadvantage of the H-2B visa is that it requires 'labor certification' - an expensive and time consuming process that involves extensive advertising of the position, and satisfying the authorities that there are no US workers available to do the job. Also, H-2B visas are initially granted only for one year, extendable in one year increments to a maximum of 3 years. As each extension requires a new Labor Certification, it unsurprising that, of the annual quota of 66,000 H-2B visas, only a few thousand are ever issued.

The new H1B legislation requires certain employers, called 'H1B dependent employers' to advertise positions in the USA before petitioning to employ H1B workers for those positions. H1B dependent employers are defined as those having more than 15% of their employees in H1B status (for firms with over 50 employees – small firms are allowed a higher percentage of H1B employees before becoming 'dependent'). In addition all new H1B petitions and 1^st extensions of H1B's now require a fee (in addition to the usual filing fees) of US$500 to be paid, which will be used to fund a training programme for resident US workers.

The initial visa may be granted for up to three years. It may then be extended, in the first instance for up to two further years, and eventually for one further year, to a maximum of six years. Those wishing to remain in the US for more than six years may, while still in the US on an H1B visa, apply for permanent residence (the "green card"): if such employees do not gain permanent residence, when the six year period runs out, they must live outside the US for at least one year before an application is made for them to enter on an H or an L visa.

Once a company has brought an employee to the US on an H1B visa, should the company dismiss that employee before the expiry of the visa, the company is liable for any reasonable costs that the employee incurs in moving him/herself, his/her effects, and (where appropriate) his/her dependants, back to his/her last foreign residence. This provision covers only dismissal, it is not relevant when an employee chooses to resign.

H1B Dependent Employers

Before making an H1B application, an H1B dependent employer must make "good faith" attempts to recruit resident US workers using "procedures that meet industry-wide standards" and "offering compensation at least as great as that offered to the H1B alien". Given the wide variety of recruitment methods used in different industries, this provision is likely to cause some confusion both for the BCIS and employers. For example, Internet advertising might be in "good faith" and "meet industry-wide standards" for the IT sector, but would it for, say, the engineering industry? This is a matter that will demand careful consideration on the part of H1B dependent employers.

It is worth noting, however, that the recruitment attestation described above is not required by H1B dependent employers seeking to employ aliens with Master's (or higher) Degrees, or those earning in excess of US$60,000. Non H1B dependent employers are not required to make such an attestation in any event.

Can my company make H1B visa applications?

Any US employer can sponsor an H1B petition, provided it has an IRS Tax Number, also known as an IRS Number or Tax ID Number. This number is needed for obtaining approval of the Labor Condition Application (LCA), which is an essential preliminary to the H1B petition itself. However, employers should take note that sponsoring an H1B petition involves them making a number of undertakings, enforceable by heavy civil and criminal penalties: These undertakings are:-

• To pay the H1B worker at least the higher of the wage paid to similar workers in the same company or the "prevailing wage" (usually determined by the relevant State Employment Services Agency) for the occupation in the area the worker will be employed;
• That the recruitment of the H1B worker(s) will not adversely affect the conditions of the employer's US-resident employees in similar jobs;
• That there is no strike or lockout occurring at the time the Labor Condition Application is submitted, and that the approved LCA will not be used to support petitions for H1B aliens to be employed at the site of any subsequent strike or lockout;
• That a copy of the LCA form will be given to the H1B worker and either given to the bargaining representative of employees in similar occupations or (if there is no bargaining representative) posted in 2 conspicuous locations for at least 10 days in the place the H1B alien will be working;
• To maintain records of the LCA and the H1B alien's employment for inspection by the US Department of Labor.

Note that the prevailing wage is generally lower for non-profit and academic/research organizations.

H1B Beneficiary Eligibility

In order to qualify for an H1B visa, the alien must demonstrate that s/he is able to work in the 'speciality occupation' for which s/he is being hired by the sponsoring employer. This can be demonstrated by:-

• Possession of a relevant US college degree;
• Possession of a non-US college degree (and, generally, 3 years' relevant high-level work experience) independently evaluated as being equivalent to a relevant US college degree;
• Possession of at least 12 years' high-level work experience, independently evaluated as being equivalent to a US college degree; or
• Possession of any relevant State or Federal license that may be required in order to practice in a particular profession.

NB: If there is a requirement for a State or Federal license in order to practice any 'speciality occupation', then the alien must generally possess such a license in order to qualify for an H1B visa. For example, doctors, lawyers, accountants and similar professionals must generally have passed the relevant state licensing examination and be in all other respects qualified to practice in the State of intended employment.

H-1b visa application process flowchart

You complete our on-line appraisal form

workpermit.com considers the application. If your company, the position and the candidate are eligible for an H1B visa, workpermit.com e-mail to you:

A formal instruction form to return

Details of any additional data required, and confirmation of which documents we need

You post documents to workpermit.com at 11 Bolt Court, London EC4A 3DQ

workpermit.com files a Prevailing Wage request with the relevant State Employment Security Agency. Determination generally takes between three and ten working days

workpermit.com prepares a Labor Condition Application form and instructions, and the I-129H petition forms

You sign and return to us the LCA and I-129 H form

We submit the LCA to the US DoL, and once the LCA is certified, workpermit.com compiles and submits your I-129H petition to the Immigration & Naturalization Service at the appropriate Regional Service Center

After 2 to 6 months the petition is approved, and the Notice of Approval is returned to you, these are then taken to the relevant US consulate by the candidate for issue of the H1B visa. workpermit.com will provide full instructions and forms, and in some instances can arrange for visa issuance

Frequently Asked Questions about H1B Visas

Q. Can the H1B employee work at different sites?

A. Yes, but a separate Labor Condition Application must be made for each site at which the employee will be working (though there is a limited exception for short-term assignments at different sites within the same Metropolitan Statistical Area).

Q. Can employment/contracting agencies sponsor H1B visas?

A. Yes, but remember the sponsor has to pay the prevailing wage whether or not they can find employment for the alien.

Q. Can I bench H1B aliens?

A. Yes, but you cannot bench US resident employees and have the alien working at the same time.

Q. How many H1B visas are available each year?

A. 65,000 for the fiscal year starting October 1, 2005.

Q. What happens when the annual quota is reached?

A. USCIS announces a cutoff date once the annual quota is reached. Petitions filed before the cutoff date, but after the quota has been used up, will be held for processing the following October. Petitions submitted after the cutoff date will be returned to the petitioner without consideration.

Q. What are the government fees involved in obtaining an H1B visa, and who pays them?

A. The USCIS filing fee is currently US$ 190, which must be paid by the sponsoring employer. In addition to the filing fee, the USCIS imposes a Fraud Prevention and Detection fee of US$ 500. For H1B applications, the USCIS also imposes a American Competitiveness and Workforce Improvement Act (ACWIA) fee of US$ 1,500 if the petitioner employs more than 25 full-time equivalent employees, including any affiliate or subsidiary, or US$ 750 if the petitioner employs 25 or less full-time equivalent employees. Finally, consular visa processing usually involves a charge of approximately $105 in local currency. Prevailing Wage Determinations and Labor Condition Applications are free of government charges.

Q. How long does the process take?

A. On average 3-6 months in total, depending on the USCIS Regional Service Center processing the application.

Q. Is it possible to speed up the process.

A. Yes. USCIS has instituted a program called Premium Processing. If USCIS is paid an extra $1,000 on a separate check, they guarantees it will adjudicate the petition in 15 days or notify the petitioner if more evidence is needed.

Q. Can the alien come to the USA on a visitor visa or visa-waiver while the H1B petition is being processed?

A. This is possible but not advisable, and under no accounts should the alien risk putting in jeopardy the issue of an H1B visa by engaging in anything that might be construed as work, as this may lead to the alien being accused of visa-fraud either on entry to the US with a visitor visa/visa-waiver or when applying for an H1B visa at the US consulate in their own country.

Q. If I sponsor an alien worker for an H1B, do I have to employ him/her for the full period of the visa's validity?

A. No, but if you dismiss the worker before the H1B visa expires you are responsible for his/her reasonable costs of return transportation to their home country. You will probably not be responsible for such costs for his or her dependants, however.

Q. Can the H1B alien's spouse/children work or study in the US.

A. Dependents of the H1B alien are granted H-4 visas, which are not employment-authorized. Thus they cannot work unless their prospective employer unless they can obtain a work visa in their own right. H-4 dependents may, however, undertake study in the USA.