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H1B visa
Content
Introduction to H1B
visa
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, currently 115,000 for Fiscal Year 2000
(October 1st 1999 to September 30th 2000). Moves are afoot
in Congress to try to increase this limit to at least 200,000.
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 1st 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 INS 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
-
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 Grafton Street, London W1X 4NP.
-
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 4 to 6 weeks 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. 115,000 for the fiscal year starting October 1st
1999. Proposed legislation would increase this number to 200,000 for the year
beginning October 1st 2000.
Q. What happens when the annual quota is reached?
A. The INS 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 INS filing fee is currently US$610.00, $500 of which
goes to a special fund for training US resident workers, which fee must be paid
by the sponsoring employer. In addition, consular visa processing usually
involves a charge of approximately $45.00 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 2-3 months in total, depending on the INS
Regional Service Center processing the application.
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 relocation costs to their home country.
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.
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