Since the enactment of the Immigration Act of 1990, U.S. immigration policy favors those that have skills, experience, or the financial capability to come to the U.S. As such, the H-1B Specialty Worker Visa was created to attract professionals with specialty skills to come and work in the U.S. Under H-1B, the petitioning employer will file the visa application on the behalf of the foreign employee, or potential employee. Annually, there are 65,000 H-1B visas available for specialty professionals. In addition to the 65,000 H-1B visas, an additional 20,000 visas are available for applicants who obtained Master’s Degrees or higher from U.S. universities and colleges. However, qualified teachers and educators are exempt from the numerical limitation and may apply for H-1B throughout the year.
How Do I Qualify For An H-1B Visa?
To qualify, the employer must first offer the foreign employee a full-time or a part-time professional position. The offer must contain the proposed salary that is within the prevailing wage, issued by the U.S. Department of Labor. Our New York H-1B Visa Attorneys will assist employers in obtaining the prevailing wage based on your geographical area. Additionally, the employment must be one that is qualified as a “specialty occupation.” A “specialty occupation” means an occupation that requires theoretical and practical application of an area of specialized knowledge, such as an accountant, teacher, software developer, information technology analyst, an engineer, or a scientist. In addition, the person must also have a bachelor’s degree or an equivalent of a U.S. degree.
This list may be expanded depending on the position. Additionally, the employee must have at least a bachelor degree or higher. In many circumstances, The USCIS will accept experience in place of a bachelor degree. The USCIS will replace every three years of experience for one year of education. Therefore, if the IT professional, a network administrator, only has an associate degree in information technology, but has 6 or more years of experience, the person may qualify for an H-1B Specialty Occupation Visa. Lastly, a labor condition application from the DOL must be obtained.
What Is the Application Process for H-1B Visas?
First the petitioning employer has to prepare employment offer for the prospective foreign employee. Such offer must be detailed and proscribed the job duties consistent with the specialty occupation and a salary offer that is equal to or more than the prevailing wage for such position. Subsequently, the employer must prepares and file a petition on behalf of the foreign employee. It is important that the employer only files one (1) H-1B application for each prospective employee. The USCIS will reject and fine any employer who attempted to file multiple applications for the same employee. On the contrary, the employee may have different petitioning employers filing H-1B specialty worker visas on their benefit. Recently, the number of H-1B applications have declined; thus, USCIS has not utilized the electronic visa lottery that was traditionally used. Employers now may enjoy filing for H-1B throughout the year.
In October of 2000, the American Competitiveness in the 21st Century Act (AC21) was signed into law. AC21 includes a portability provision that allowed previous H-1B holders to start with a new employer upon filing and receiving a receipt from the USCIS for the new H-1B petition. This is sometimes refers to as an “H-1B Transfer.” However, it is not a transfer at all but that the new application will use the existing H-1B visa that previously awarded to the beneficiary. The law drastically changed the way the H-1B visa holders are regulated. Before the enactments of AC21, individuals could not start the new position H-1B employer until the new H-1B petition was approved.
An initial H-1B visa is authorized to stay in the U.S. for 3 years. At the end of the initial period, 3 months before the end of the visa expiration date, the employer may petition for a renewal for a one-time, three-year period, totaling 6 years. Within this period, the employer may file an I-140 immigrant petition for the employee. If the I-140 immigrant petition is approved and the employee has a pending adjustment of status application, the H-1B visa holder may file an annual extension to continue to work and remain in the U.S.
Employers who wish to employ their H-1B on a permanent basis should file an immigrant petition for the employee as soon as applicable. It could take 3 to 4 years before the employer’s immigrant petition (I-140) is approved. Once approved, the employees and their spouses may file for adjustment of status and obtain employment authorizations.
For more information on H-1B, please contact Lawyers of Figeroux & Associates at 718-834-0190.
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