The H-1B visa is designed for foreign workers in “Specialty Occupations” and is used often to bring foreign professionals, professors and researchers to the American work place including research foundations, hospitals and universities. “Specialty Occupation” is defined as an occupation that requires at least a Bachelor’s degree in the field of intended employment. If the professional has a Bachelor’s degree but the position does not require at least a Bachelor’s degree to perform the duties, the occupation will not qualify for the H-1B visa category.
The H-1 visa may be held for a maximum of 6 years with an initial grant of up to 3 years. It is practical, to request the maximum (3 years) time period in the initial H-1B visa application process because filing is time-intensive and the fees involved can be costly. To request the maximum period of H-1B employment will eliminate the need for a re-filing process each year. In cases where there is a year by year contract which must be renewed annually, the employer may consider writing a letter supporting the visa application for the maximum period of three years by inserting the contingency clause “pending the renewal of the contract” or “pending the availability of funds” (in the case of research grants). This suggestion is made only as a practicality and is by no means required.
An important benefit of the H-1B visa category is that the Immigration Act of 1990 gives H-1B visa holders special protections if they are applying simultaneously for Permanent Residency.
LABOR CONDITION APPLICATION REQUIRED
Employers wishing to sponsor H-1B workers must agree to the terms of the Labor Condition Application (LCA) by signing the bottom of the form itself. Specifically, employers are required to maintain documentation supporting the statements that:
- H-1B non-immigrants will be paid at least the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question or the prevailing wage, whichever is higher.
- The employment of H-1B non-immigrants will not adversely affect the working conditions of workers similarly employed in the area of intended employment.
- On the date the application is signed, there is not a strike or lockout in the course of a labor dispute at the place of employment. The Labor Condition Application cannot be submitted until the strike has been settled.
- A copy of this LCA must be provided to each H-1B worker pursuant to this application and as of the date of signing this application, notice of this filing will be either provided to the bargaining representative if there is one or that this notice will be posted for 10 consecutive days in 2 conspicuous locations where the H-1B workers will be employed.
- The employer will pay reasonable costs for the return trip to the alien’s home country if his/her employment is terminated before the end of his term of employment.
DEFINITION OF THE “PREVAILING WAGE”
The prevailing wage means a wage documented by real market data. The unchallengeable standard for prevailing wage is survey data reported by the State Employment Security Agency. Wage surveys from professional associations and other sources may also be used as guidelines. The salary offered must be at least 95% of the Prevailing Wage determination to qualify for the H-1B visa category.
PROCESSING TIMES FOR H-1B VISA APPLICATIONS
In general, an application for change to H-1B visa status takes about three months from the time INS receives the application. This same schedule applies to extensions of previously approved H-1B visa status cases. If either the employer or the beneficiary (the alien) wishes to expedite the process, either party may file for the “Premium Processing” option which guarantees adjudication of the case within 15 days from the INS receipt of the application with a money back guarantee. Premium Processing Fees are $1,000 made payable by check or money order to the U.S. Immigration and Naturalization Service.
OTHER IMPORTANT FACTS ABOUT H-1B VISA
H-1B aliens are subject to Social Security (FICA), Medicare taxes. They are entitled to claim U.S. Resident Status for Tax Purposes. They are subject to Federal and State income tax unless exempt by a tax treaty. Family dependents holding H-4 visa status are not eligible for paid employment.
In the case where you are filing for a transfer of H-1B visa from one employer to another, you may take advantage of the “visa portability” allowance which means that if you are in legal H-1B visa status for one employer and you wish to change employers (jobs), the new employer may file a new H-1 visa petition and you may work legally for the new company once the new employer has received Form I-797 from INS acknowledging that your application has been received.