What is an H-1B visa?
The H-1B Specialty Occupation Visa is one of the ways in which companies can bring professionals to the United States. The H-1B Visa is a non-immigrant classification used by a person who will be employed temporarily in a specialty occupation. This visa can be used for professional positions which require specialized knowledge along with at least a bachelor’s degree in the appropriate field.
Obtaining an H-1B Visa
The H-1B visa has an annual numerical limit “cap” of 65,000 visas each fiscal year. An advanced degree exemption is an exemption from the H-1B cap for beneficiaries who have earned a U.S. master’s degree or higher and is available until the number of beneficiaries who are exempt on this basis exceeds 20,000. H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related non-profit entities or a non-profit research organization, or a government research organization are not subject to this numerical cap.
Foreign Nationals who have not been granted H-1B visas or admitted to the U.S. in H-1B status previously are subject to the cap and must undergo an electronic registration process, usually conducted in the month of March. The registration process simply requires basic information on the prospective petitioner and each required worker, and is completed by potential petitioners (also known as registrants) and their authorized representatives. Each fiscal year, USCIS opens an initial registration period for a minimum of 14 days. Then, using correctly submitted electronic registrations, the H-1B selection procedure is carried out. The only people allowed to submit H-1B cap-subject petitions are those who have chosen registrations.
- A H-1B non-immigrant may be admitted for a period of up to three years. The time period may be extended but generally cannot go beyond a total of six years, though some exceptions do apply under sections 104(c) and 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21).
The employer will be liable for the reasonable costs of the worker’s return transportation if the employer terminates the worker before the end of the worker’s authorized stay. The employer is not responsible for the costs of the worker’s return transportation if the worker voluntarily resigned the position.
- The worker’s spouse and unmarried children under 21 years of age may seek admission in the H-4 nonimmigrant classification. Family members in the H-4 nonimmigrant classification may not engage in employment in the United States, with the exception of spouses when the H-1B holder has completed part of the permanent residence process.
Preparing an H-1B Petition
- The employer must apply for and receive DOL certification of an LCA. The application requires the employer to attest that it will comply with the following labor requirements:
- The employer will pay the beneficiary a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for your position in the geographic area in which you will be working.
- The employer will provide working conditions that will not adversely affect other similarly employed workers. At the time of the labor condition application there is no strike or lockout at the employer place of business. Notice of the filing of the labor condition application with the DOL has been given to the union bargaining representative or has been posted at the place of business.
- The employer should file Form I-129, Petition for a Nonimmigrant Worker, with the correct USCIS Service Center.
- Prospective Workers Outside the United States Apply for Visa and/or Admission. Once the Form I-129 petition has been approved, the prospective H-1B worker who is outside the United States may apply with the U.S. Department of State (DOS) at a U.S. embassy or consulate abroad for an H-1B visa (if a visa is required). Regardless of whether a visa is required, the prospective H-1B worker must then apply to U.S. Customs and Border Protection (CBP) for admission to the United States in H-1B classification.
With a cap of 1,400 Chileans and 5,400 Singaporeans, the H-1B1 program allows for the temporary hiring of nonimmigrant foreign workers in specialty occupations from Chile and Singapore. Many of the regulations that govern the H-1B program also apply to the H-1B1 program. An LCA is also required in this category, but no petition is required to be filed with USCIS. Workers can apply at a U.S. consulate or embassy. The H-1B1 can be extended, but only in one year increments.
It’s essential to consult a skilled immigration lawyer if your company wants to sponsor a foreign worker for a specialty occupation in the U.S. Our skilled immigration attorneys in Houston, Texas regularly deal with H-1B and H-1B1 visas and can assist your business to get through the procedure while adhering to U.S. immigration regulations.
If you are in need of a US work visa or permanent residency, speak with one of our immigration lawyers. Please contact us online, call our Houston business immigration attorney office directly at 713-953-7787, or schedule a consultation.