H-1B Visas
The H-1B nonimmigrant category is set aside for foreign workers in “specialty occupations” and fashion models of “distinguished merit and ability.” The workers in this category may be filling permanent positions in the U.S., as long as they depart the U.S. at the end of their authorized periods of stay, including any extensions of stay. H-1B workers do not need to maintain a foreign residence during their period of stay in the U.S., a requirement imposed on many other nonimmigrant categories. In addition, H-1B workers may seek permanent residence concurrently with petitioning for or holding H-1B status.
Facts important to the H-1B foreign worker:
A nonimmigrant in the H-1B category is an alien who is coming temporarily to the U.S. to perform services in a “specialty occupation”. The alien is qualified through the appropriate degree, or through a combination of education and experience equivalent to that degree. The worker may be entering the U.S. for the first time or may already be working in the U.S., but pursuing a change of employer.
The foreign worker must prove that he or she is qualified for the specialty occupation and the particular job offered. One method is to obtain a credentials evaluation of their foreign university degree, to show that it is equivalent to that of a U.S. degree.
If the worker is already in the U.S. and holds a valid nonimmigrant status, the H-1B visa can be extended and revalidated in the U.S. If, on the other hand, the worker is not in lawful status, or resides abroad, the H-1B visa must be obtained through a U.S. Consulate.
Since the H-1B visa is considered a temporary visa, there is a limitation on periods of stay. The initial periods of stay may be approved for up to 3 years (usually depending on the occupation and/or the needs of the employer). And after that, another 3 years are available, by filing forms for and extension of stay. After the six years, the worker must spend one year outside the U.S. before being entitled to another H-1B visa. However, many workers take steps to obtain permanent residence (the Green Card) during their initial 6-year stay.
Dependents of H-1B workers (spouses and children under 21) may be granted an H-4 visa. Dependents with an H-4 visa are not permitted to work in the U.S.
Facts important to the employer of an H-1B foreign worker:
To qualify as a U.S. employer, the employer must have a U.S. taxpayer identification number.
When hiring an H-1B worker, the employer must file a Labor Condition Application (LCA) with the Department of Labor (DOL). This application requires the employer to describe the position and the salary, as well as attest to facts concerning the wage, working conditions, labor conditions and the giving of notice of the employment.
Once the LCA is approved, the employer then submits an I-129 Petition for nonimmigrant worker, along with related forms and supporting documents, to the Immigration and Naturalization Service (INS). This form documents that the job requires the services of a person in a “specialty occupation”, and provides documentation that the worker does, indeed, qualify for the job offered.
The employer of an H-1B worker has certain responsibilities to meet. Once the I-129 is approved, the employer must maintain wage and hour records, as well as information concerning working conditions for similarly situated employees. Upon request, these records must be provided to DOL’’ Wage and Hour Division. If the appropriate records are not maintained, the employer could be liable for substantial penalties and fines, even lose the right to apply for immigrant and nonimmigrant visas for up to one year.
If the worker is terminated any time during the approved period of stay on the I-129, the employer is generally responsible for paying for the worker’s return transportation to his or her foreign residence.
