The United States Immigration and Nationality Act governs the rules and regulations for the H1B visa under section 101(a)(15(H). The code section can be found on the United States Citizen and Immigration Services website at http://www.uscis.gov/iframe/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-101.html
The H1B visa is an avenue to pursue for U.S. employers in attempting to hire foreign workers for a temporary position that requires a certain specialization. The H1B visa is for a specialty occupation in a highly specialized field of application including but not limited to science, technology, chemistry, engineering, architecture, mathematics, medicine, education, law, accounting, arts and any other area where a bachelor’s degree is the minimum requirement of knowledge to perform the specialized area of practical application.
What do I need to apply for an H1B visa?
The most important requirement is that an employer-employee relationship exists. A valid employer is the one that will pay for the H1B worker. In most cases the petitioning company will provide documentation including but not limited to employer tax ID, number of employees, description of company profile, description of products or services, job description for foreign worker.
However, you must provide additional identifying information that will assist the immigration office in determining the entire academic and work history. This will assist the immigration officer in understanding your entire life up until the point of applying for a this rigorous work visa that is limited to 65,000 applicants a year. The identifying information that is expected from you is a copy of your passport, I-94 if applicable, resume, degrees, transcripts, diplomas, technical exam results, letters of recommendation, awards, W-2 from prior years and any immigration notices of action.
Additional information about what is required from you can be found on the United States Immigration Services website at http://www.uscis.gov/eir/visa-guide/h-1b-specialty-occupation/understanding-h-1b-requirements.
What is the minimum job requirement for an H1B visa?
The minimum requirement for a foreign worker to apply for a job under the minimum threshold requirement for an H1B visa is having obtained a bachelor’s degree or its equivalent for the particular position. A degree for the position in the industry is the most common standard requirement and most employers normally require a degree for the specific knowledge required to perform the job.
For the limited amount of H1B visas given out each year there is priority given to the most rigorous job descriptions for the most reputable companies out there. The chances of obtaining the H1B visa by meeting the job qualifications is often times very difficult to achieve without academic accomplishments and understanding certain complex disciplines.
Is it possible to apply for an H1B without a bachelor’s degree?
It is difficult to show that an employer’s specialized job requirement can be held without a bachelor’s degree at a minimum. However, there are other ways to determine whether you can qualify for a position that is not determined by scholastic accomplishments. You must be paid the higher amount of either actual or prevailing wage for the profession.
What is prevailing wages vs. actual wages?
The prevailing wage is calculated based on the position in the geographic location in which you will be employed. There is an entire database within the U.S. Department of Labor that provides estimates the wage levels based on profession and work locations.
You can find more information about the current economic statistics on wages for various job occupations from the U.S. Department of Labor by clicking on the following link: http://www.dol.gov/whd/regs/compliance/FactSheet62/whdfs62g.htm
The actual wage is the rate paid by the employer to all the employees that have same or similar jobs to that of the foreign worker applying for the H1B visa. If there are no similar jobs in the specific place of employment, then it is the paid work from that employer to the H1B employee.
How do I know my H1B petition will be granted?
Once the H1B petition is filed it will be assigned a visa number. The H1B visa has an annual limit of 65,000 each year and there are certain petitions that are exempt from this cap. Typically employers will file the petition 6 months before the actual start date, which is generally April 1. This is to determine whether they will fall under one of the exemptions on behalf of the beneficiaries. The exemptions to the numerical cap apply to foreign workers who are petitioned at a university, non-profit organization, or government research organization. The numerical cap is used up quickly each year so if you fall under the non-exemption, then it is important to make sure you file timely.
What if my employer attempts to stop employing me after having applied for the H1B visa?
If your employer attempts to quit sponsoring you, then it is important that you apply for a change of status. This includes filing another application for another non-immigrant visa while currently holding a H1B visa. The only other option would be to find another employer that would be willing to file an adjustment of status on your behalf.
What is the maximum amount of time I can stay inside the United States on a H1B visa?
It is 6 years. However, it is re-issued every 3 years by the USCIS. If you are looking for an extension, it is possible to obtain an extension beyond the 6-year time limit under certain circumstances.
Typically a green card application is the most common after an H1B has been issued. This means that the visa holder must submit the I-140 immigrant petition (or labor certification) prior to the last year having the H1B visa. However, an H1B is only available for three-year increments so this means either the second or fifth year would be applicable.
What if you want to work in the United States after the six year time requirement?
If you do not already have your green card by the sixth year, then you may remain on the H1B visa status for a maximum duration of 10 years under certain job occupations. The only common exception that occurs is when a foreign worker is employed by the United States Department of Defense on a very specific project that extends past the six-year time requirement.
Anyone who holds an H1B visa after the six years without obtaining a green card must remain outside the United States for one year before reapplying for anther H1B visa. This is for anyone who wants to continue working for a sponsored employer who will petition on his or her behalf. The employer has the option of hiring another foreign worker for the next six-year duration or reapply again for the original foreign worker. Either way, the cap and filing requirements remain in effect.
How will I be taxed on my income as an H1B employee?
The taxation depends on the category of either a non-resident alien or resident alien. A non-resident alien is only taxed on income from the United States and a resident alien is taxed on both incomes that are earned inside and outside the United States. This is known as the substantial presence test where the H1B visa holder that is a resident must file a Form 1040 and 1040 NR from the visa holder’s country of citizenship. Anyone in the United States in his or her first year may be considered a resident for taxation purposes and must pay taxes on all incomes from around the world. All H1B visa holders are eligible for Social Security benefits because they pay both Medicare and Social Security taxes.
What if I have a spouse and kids while on a H1B visa status?
H1B visa is a non-immigrant visa; however, it is one of the few visas that recognize duel intent. This means any H1B holder can have legal immigration intent to obtain a green card while holding the H1B status. Most spouses and children are dependents of the H1B beneficiary. Typically they apply under an H-4 status and will remain in the United States as long as the H1B holder has his or her status. The H-4 holder is not eligible for a social security number but may be eligible to work which stated in 2015. The Department of Homeland Security ruled that H-4 visa holders are permitted to attend school, get a driver’s license, open bank accounts and have an individual Tax ID number. More information can be found on the Department of Homeland Security website at http://www.uscis.gov/working-united-states/temporary-workers/temporary-nonimmigrant-workers
Collectively, the family will apply for green cards during the time the H1B holder still has his or her status.
What is the administrative interview process for the H1B visa?
The interview for the H1B is conducted at the United States Embassy under the supervision of a visa officer. The H1B worker may be required to undergo a lengthy background check that may take upwards of 10 days or longer.
The Department of Labor is responsible for ensuring that the foreign worker does not displace or affect the wages of U.S. workers in their occupation.
A Labor Condition Application is filed along side every H1B petition filed with the USCIS. It is important to understand that the U.S. Department of Labor is just as involved with your H1B visa as the United States Citizenship and Immigration Services. The duty of the U.S. Department of Labor is to ensure that any wage offered to a foreign worker meets the prevailing wage in the area of employment.
The Labor Conditions Application is to offer protection to both the U.S. and H1B workers. It may be helpful to look at the U.S. Department of Labor for such surveys to follow under the rules and regulations for H1B applicants. http://webapps.dol.gov/elaws/h1b/glossary.aspx?word=lca
If you have any questions on the H1B process and whether or not you qualify for this specific work visa please feel free to contact an experienced San Diego Immigration Lawyer at (619) 808-7877.