H-1B Visa: A path to hiring professional foreign employees.
THE H-1B VISA
The H-1B visa is the primary method for hiring professional foreign employees to temporarily work in the United States. This visa is an employer-sponsored process and is intended for foreign workers in specialty occupations, i.e., occupations that normally require a bachelor’s degree. H-1B visas are granted for a maximum of six years and are typically filed in three year increments.
THE H-1B VISA CAP
There are a limited number of H-1B visas available per each calendar year. The current H-1B visa cap is 85,000 employees in total, 65,000 are allotted for employees with at least a Bachelor’s degree or its equivalent and 20,000 visas are allotted for employees with at least a U.S. Master’s degree. Congress has not increased the H-1B visa cap in many years and as a result, the immigration service has received more petitions than it is allowed to approve in the past years. When this is the case, petitions are put in an H-1B Visa Lottery, which is a system created to randomly choose which H-1B petitions will be considered. The petitions that were not selected are returned with the filing fees and rejection letter. This does not prevent applicants from applying in a subsequent year or applying in a cap-exempt status, but it does pose additional hardships on H-1B visa applicants and their employers because there is no guarantee their petition will even be considered due to this influx in applications. Therefore, it is best to consult with a good immigration attorney if you are considering applying for this visa.
CAP-EXEMPT EMPLOYMENT
Certain employers, such as non-profit research organizations, governmental research organizations, institutes of higher education or certain employers related to those organizations or individuals performing work at the physical locations of those cap-exempt organizations are exempted from the annual cap. In addition, certain physicians who have received J-1 visa waivers based on Conrad 30 are cap exempt. Applicants who need to extend their H-1B employment or file a new H-1B due to change of employer will be cap exempt only if their original H-1B visa was counted towards the cap. If a worker transfers from a cap-exempt position to one that does not qualify for an exemption, the worker will no longer be protected by the cap exemption and must instead be counted against the cap at the time of the transfer.
THE PREVAILING WAGE REQUIREMENT
The employer is the petitioner of the H-1B visa application. The employer has to ensure that the H-1B worker will be paid at least the wage paid to similarly employed workers in the same geographic area where the H-1B worker will be employed. This is determined by outside wage surveys that the Department of Labor and other private companies conduct for each metropolitan area in the U.S.
H-1B EXTENSIONS BEYOND 6 YEARS
While the H-1B visa has a maximum of 6 years of stay in the U.S., a law called AC21 allows people who are on their way to permanent residency or green card to file extensions of their H-1B visa if they have started the green card process on time. To qualify for extensions of the H-1B visa beyond the 6th year, you need to prove that you either have a pending PERM labor certification or have filed an I-140 immigrant visa petition at least 1 year beforehand. If you have an approved I-140 immigrant visa petition but cannot file for a green card because of backlog in immigrant visas, an H-1B extension can also be approved.
- I-130 Family Petitions and Consular Processing: A path to keeping the family together for foreign-nationals. - November 3, 2014
- H-1B Visa: A path to hiring professional foreign employees. - October 23, 2014
- Deferred Action for Childhood Arrivals (DACA): What is it and who is eligible? - October 16, 2014