Among the most common visa options available to foreign workers wishing to come to the US for a professional job is the H-1B visa for workers engaged in specialty occupations. The H-1B visa is a temporary nonimmigrant visa that allows skilled workers to live in the US with their families for a period of 3-6 years, which can be extended further under some circumstances. Edgecomb Law LLC assists businesses and their employees in securing H-1B visas and developing an overall strategy regarding employment of H-1B workers, which can be a highly complicated process.
Below is some general information regarding the process for obtaining an H-1B visa. To speak with an lawyer regarding specific questions about H-1B visas, please feel free to contact us. Edgecomb Law LLC has a nationwide immigration practice, which means that the firm works with immigration clients in the Boston area as well as throughout the United States and abroad.
Who qualifies for an H-1B visa?
To qualify for an H-1B visa, an employee must have a job offer in the U.S. The job offer must be in a "specialty occupation" (such as enginnering, scientific research or financial services) and must generally require a bachelor's degree (or higher) or the equivalent of a bachelor's degree. Additionally, the employee herself must hold a bachelor's degree (or higher) or the equivalent of a bachelor's degree. The H-1B petition must be submitted by the employer, not the employee. H-1B visas are known as dual intent visas, which means the holder of an H-1B is permitted to enter the U.S. with the intent to remain here as a permanent resident after expiration of the visa.
The U.S. government has implemented a cap on the number of H-1B visas that can be issued each year. The annual cap for H-1B visas is 65,000. However, an additional 20,000 H1B visas are also available to foreign workers who hold advanced degrees issued by U.S. institutions of higher learning. Also, nonprofit organizations and institutes of higher learning are exempt from the annual H-1B cap, which is to say their H-1B employees are not counted towards the annual limit. Non-exempt employers who wish to file an H-1B visa petition for one of their workers should aim to file the petition as soon as possible after April 1st in a given year. April 1st is the date when USCIS begins accepting H-1B visa petitions for the following fiscal year (beginning October 1st), and the annual cap is often reached very soon after April 1st. Workers whose H-1B visa petitions are selected in the lottery and approved can begin working for their US employer the following October 1st.
Labor Condition Application
Prior to filing an H-1B petition, an employer must first obtain a Labor Condition Application ("LCA") from the Department of Labor. The LCA contains a series of representations from the employer regarding the salary to be paid to the H-1B employee and other information concerning labor conditions at the worksite. The employer must attest to the fact that employment of the H-1B worker will not adversely affect the employment of any workers at the worksite. Regarding salary information, the prospective H-1B employee must be paid whichever is greater: (1) the prevailing wage for similar positions as determined by the Department of Labor (or pursuant to its guidelines); or (2) the actual wage paid to other employees at the worksite with similar qualification to the H-1B applicant.
H-1B status is generally granted for an initial period of three years, which can be extended up to a maximum of six years total. In some rare cases, the six-year limit may be extended. H-1B workers and their families are permitted to apply for green cards, or permanent resident status, prior to the expiration of their H-1B status. H-1B workers with pending or approved green card petitions can extend their H-1B status beyond six years under some circumstances.
Spouses and Children
H-1B workers are permitted to bring their spouses and children under the age of 21 to the US to live with them. Spouses and children of H-1B workers are generally issued H-4 visas, which allow them to attend school, open bank accounts and obtain a driver's license. However, H-4 visa-holders are not permitted to work in the US.
H-1B Visas for Entrepreneurs
Startup founders and other entrepreneurs may qualify for H-1B visas under some circumstances. For more information, along with other options available to entrepreneurs in need of immigration solutions, please check out our page on Immigration for Entrepreneurs.