What Is An H1B Visa?
An H1B visa under the Immigration and Nationality Act allows for non-immigrant workers to be employed in a specialty occupation in the United States. The H1B visa program was introduced to allow International Professional and International Students the opportunity to live and work in the US. This is a highly sought after visa and only so many petitions are accepted every year, which can make obtaining one difficult. This visa is open to individuals from all over the world and is extremely popular because it allows for “dual intent”, which means that the visa holder is allowed to apply for permanent residency.
Who Is An H1B Visa For?
Individuals who wish to apply for an H1B visa are foreigners seeking employment in the United States for a set amount of time. The employment they seek must be a specialty occupation which they have education or specialty training in. Industries that are usually applicable include IT, accounting, banking, advertising, architecture, medicine, engineering, journalism, law, research, sales, teaching, and management, to name a few. The applicant must have a bachelor’s degree or its equivalent from their country, that is necessary to fill the specialty occupation as outlined by the employer. The employer must prove the position offered to the applicant is a specialty occupation that cannot be filled by just anyone and requires a certain knowledge or skill set. The applicant must prove their background and experience in the specialty area, and their ability to perform the tasks of the job.
Generally, the visa is for applicants who do not wish to seek permanent residency. However, an application will not be just because they wish to seek a green card. This means the H1B visas offers “dual intent”, which is not offered with many visas.
The term of the visa is initially granted for three years but can be extended one time for a combined total of six years. H1B visas can also be extended to family members to include spouses and children under the age of 21. They will not be able to work in the United States unless they obtain their own work visa. During this time the H1B visa holder is allowed to apply for a green card, switch companies, hold multiple jobs, and work part-time. These are just some of the many advantages of an H1B visa.
How Do You Obtain An H1B visa?
The applicant themselves is not allowed to apply for an H1B visa, as it requires sponsoring from a US employer. This means the individual must search for an H1B sponsor that meets their criteria, as well as one where they can fulfill the specialty occupation. They apply for jobs with these sponsors, and in the event that they are offered one, they work with the employer to get their petition for an H1B visa filed.
The filing period for H1B’s starts April 1st and continues until the quota of 65,000 petitions has been met. The employer petitions for the H1B visa by filing Form ETA-9035 and From I-129.
Most individuals seeking an H1B visa begin the process in January to conduct research and apply for a number of jobs, increasing their chances of obtaining one. It’s extremely important to make sure the jobs desired are considered a specialty occupation and that they are under a US Sponsor Company. Late February is when job offers are usually made and accepted, at which time it’s a good idea to bring in immigration attorney to help with the process. Beginning in early April, the petitions are filed and taken into consideration and the applicant and employer wait for approval.
What Are The Current Employment Requirements?
As with any visa, there are many requirements that must be filled to obtain temporary residency. Firstly, the individual must have an H1B Sponsorship job offer from a US Sponsor Company, as the individual cannot apply for this visa on their own. The applicant must be able to demonstrate their ability to work in the specialty occupation. This can include providing degrees, college transcripts, academic records, certification of training courses, evidence of a license to work in the specialty field, etc. You may also have 12 plus years of work experience in the field to be applicable. A combination of further education and work experience can also qualify.
On the part of the employer, they must submit a Labor Condition Application (LCA) to the Department of Labor. The employer must also be aware that they must pay the foreign employee the wage that is set by the company’s compensation department pertaining to the position, experience, and skill for all employees. They must also be aware that they cannot subjugate the foreign employee to increased working hours or decreased vacation time, they must treat the foreign employee the same as any other employee.
The employer must attest in good faith that by hiring an H1B employee, they are not displacing a US worker for a similar position within 90 days before and after filling the H1B position. They must also attest to having attempted to fulfill the position with a US worker with prevailing wages.
Hire An Immigration Attorney
Applying for visas can be extremely complicated and stressful, so it is highly advised to seek out the help of an Immigration Attorney. They have a vast knowledge of the immigration process and will be able to help determine if an H1B visa is right for the specific situation, or if perhaps another visa is more applicable. They can inform you whether or not you have the right qualifications to meet the requirements of an H1B visa. They will also make sure that all steps of the process are completed correctly to ensure the best chance of being awarded a visa. Speak with a qualified immigration attorney to find out more information on H1B visas.
Beeraj Patel, Esq.
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