H-1B Visa Status for Professionals
A Temporary Non Immigrant Work Visa
The H-1B nonimmigrant visa may be used to bring a worker temporarily to the United States if the employee will work in a “specialty occupation” or a professional position. The Immigration Act of 1990 made significant changes in the employer’s obligations with respect to obtaining the H-1B visa: the forms used to apply for the visa: and the application procedures. Be sure to consult with an attorney experienced in immigration matters to be certain that this is the appropriate visa category for your purposes.
What Does the Employer Do?
Qualify as a U.S. Employer
The employer must have a U.S. taxpayer identification number. Foreign business not established in the U.S. cannot use this visa to bring employees here.
Obtain an Approved Labor Condition Application
The employer must prepare and file a Labor Condition Application (LCA) with the Regional Office of the Department of Labor (DOL). The LCA is a form which must be carefully prepared and posted in two conspicuous places at the work site. The form requires the employer to state the job title, location and offered salary. The LCA also requires the employer to attest to complex facts concerning the wage, working conditions, labor conditions and the giving of notice.
Once the LCA is approved, the employer files a petition with U.S. Citizenship & Immigration Service. The employer must document that the position requires the services of a person in a “specialty occupation.” This means a person who is working in a professional position and who has a minimum of a bachelor’s degree or its equivalent. Note that employees may show a combination of education and employment experience, or twelve years of employment experience alone to qualify for the H-1B. In such cases, an independent education and/or experience evaluation must be obtained prior to filing the petition.
What Are the Employer’s Obligations?
Completing the LCA is just the beginning. The employer must also maintain wage and hour records, as well as information concerning working conditions for all similarly situated employees. Upon request, these records must be provided to DOL’s Wage and Hour Division.
If an employer does not document the wage, pay the required wage or maintain the required records, the employer could be liable for substantial penalties including back pay and fines. The employer could even lose the right to apply for H-1B visas as well as all other immigrant and nonimmigrant visas for up to one year.
If the employer terminates the services of the employee prior to the expiration of the H-1B visa, the employer is responsible for paying for the employee’s return transportation to his or her last foreign residence.
What are the Employee’s Obligations?
The employees must prove that he or she is qualified for the specialty occupation and the specific job offered by the employer. The employee must be able to show that his or her foreign university degree is the equivalent to a U.S. degree by obtaining a credential evaluation of his or her education or obtain an education and experience evaluation showing the equivalent to a U.S. Bachelor’s degree.
If the worker is in the U.S. and currently holds a valid nonimmigrant status, he or she may, in some circumstances, may apply for a change of status to H-1B.For example, if he or she is in lawful student status (F-1), the worker may seek a change from F-1 to H-1B. This change only gives the person the ability to work in the U.S. for the sponsoring employer. If the worker needs to travel abroad, he or she will need to apply for an H-1B visa at a U.S. Consulate abroad in Canada, Mexico or their own home country. Workers not in lawful status in the U.S. or those residing abroad, apply for an H-1B visa at a U.S. Consulate prior to entering the U.S. to begin work.
How Long Can the H-1B Employee Remain in the U.S.?
The H-1B is a temporary visa with specific limitations on periods of stay in the United States. The initial petition may be approved for up to three years. After the initial three year period, H-1B status may be extended for an additional three year period.
After six years, the worker must spend one year outside the United States before he or she is entitled to re enter in H-1B status. However, if the H-1B worker begins the Permanent Residence process prior to the fifth year anniversary in H-1B status, the H-1B status may be continuously extended in one year increments irrespective of the six year cap until a decision is made on the Application for Permanent Residence.
The H-1B employee’s spouse and unmarried children under 21 years old may be granted H-4 status. An H-4 visa holder is not permitted to work in the United States. However, an individual in H-4 status may attend school.
In order to travel internationally, exit and enter the U.S. as an H-1B or H-4 (Spouse / Child of H-1B Worker) visa holder, you must possess a valid passport and a valid visa stamp inside your passport. Visa stamps are issued by US Consulate's abroad.
Documents Required for Visa Stamping
The following is a list of documents required for obtaining a visa stamp for H-1B. Note that this is not an exhaustive list. For specific questions or concerns, contact us or the US Consulate directly.
One DS-156 application form per applicant Citizens of Cuba, North Korea, the Peoples Republic of China, Russia, and Vietnam, over the age of 16, must provide two application forms).
One DS-157 application. This is must be completed by all male applicants between the ages of 16 and 45, regardless of nationality and regardless of where they apply. Females from Iran, Iraq, Cuba, Sudan, Syria, Libya and North Korea, ages 16 or older, must also complete this application form.
Valid Passport (valid for at least 6 months past the intended stay in the U.S.)
Proof of legal status in Canada/Mexico. In most cases, this will be evidence that you entered the country with permission as a visitor.
Recent passport sized photograph. The photo must have been taken within the last 6 months, 2 x 2 inches, color on white/light background, showing full face, no head cover. (Citizens of Cuba, North Korea, the Peoples Republic of China, Russia, and Vietnam over the age of 16 must provide two photos for each applicant).
Older passports containing previous visas.
Documents substantiating previous legal status in the U.S., H-1B approval notices, I-20s from any prior status as an F-1 Student, etc.
If applicable, copy of your waiver of 2 year foreign residence rule if you previously entered the US in J –1 status.
$131 U.S. non-refundable application fee. Check directly with the Consulate's web site for instructions on how to pay this fee as it varies by location.
Reciprocity fees (if applicable).
Current ORIGINAL H-1B approval notice: I-797 (either I-797Aor I-797B) ( I-797C is not acceptable). You must submit the original full page.
Current employment verification letter indicating your title, description of your duties and yearly salary.
Recent pay statements evidencing your monthly earnings.
Attorney certified copy of the full H-1B (I-129) petition completed by employer and filed with the Immigration Service. This will be provided to you by the attorney's office upon your request.
Evidence of educational qualifications in original form. This includes any diplomas and transcripts listed in your H-1B petition. Consular officers in Canada and Mexcio may refuse to issue a visa to H-1B applicants if they are unable to provide original diplomas and transcripts or if the veracity of the original document presented is questioned.
All documents must be presented in the English language. If English translation is required, the applicant must present a certified translation.
Any other documentation as required by the US Consular Official. You may check the web page or make contact directly at the number provided above.
If you are considering applying for H-1B status, you need experienced legal assistance. Please contact us by clicking here and one of your immigration Attorneys will be happy to assist you.