IT’S
TIME TO BEGIN PREPARING YOUR H-1B VISA APPLICATIONS
By Christopher A. Kerosky,
Esq.
The H-1B
visa is a very commonly used visa for foreign national professionals hired
by a U.S. employer – covering everyone from IT professionals to winemakers.
Under current law, no more than 65,000 H-1B
visas can be issued each year. This quota
has been used up in the first week of the application process for each of the
last 5 years. So, in truth, applications
are due on April 1st and it’s time to consider your plans and get
any H-1B applications ready soon so that they won’t be submitted too late.
What
is an H-1B visa?
H-1Bs can be hired only for what the
government calls "specialty
occupations," -- jobs requiring the equivalent of at least a
bachelor's degree in the field.
This is a visa commonly used for IT
professionals of all types – computer programmers,
engineers, computer assisted design professionals. It also includes all variations of other
professionals such as doctors,
engineers, professors, accountants, lawyers, physical therapists and a host
of other jobs.
In order to qualify, the employer must
demonstrate that the position requires a professional in a specialty occupation
and that the intended employee has the required qualifications. Typically, the
minimum qualification is a university (bachelor’s) degree or its
equivalent.
Employers must also pay a wage to every
H-1B worker the “prevailing wage”,
that is at least as much as what is typically paid in the region for that type
of work Employers cannot make the H-1B
nonimmigrants work under conditions different from their U.S. counterparts.
The H-1B visa is issued for 3 years, but
can be extended up to 6 years.
Presently, the processing of such visas takes between 4-6 months.
What is required to obtain an H1B visa?
An H-1B visa requires that the job qualify as a “specialized occupation”
which requires a bachelor’s degree. The
applicant must also have a bachelor’s degree in the same or similar field or
its equivalent.
Am I eligible for an H-1B visa?
In order to qualify, the employer must
demonstrate that the position requires a professional in a specialty occupation
and that the intended employee has the required qualifications. Typically, the
minimum qualification is a university (bachelor’s) degree or its
equivalent.
What can I do on
H-1B visa?
· May legally work in the U.S.
· Travel to and from the U.S. and reenter as many
times as you wish during the validity period of the H-1B visa, as long as you
have a valid stamp in your passport.
· H-1B visa holders may simultaneously seek Lawful
Permanent Residency or a Green Card for themselves and for their family.
What are the limitations of H-1B visa?
· If you change jobs you must reapply for a new visa,
under the new position
· You can only work for the company with petitioned
for you.
Can I bring my
dependents on H-1B visa?
Yes, you may bring your dependents on an H-1B visa. Your spouse and
unmarried children are entitled to a H-4 visa and they can stay as long as you
maintain valid H-1B status..
How long can I
stay in the U.S. on an H-1B visa?
Generally H-1B visa is granted for three years. It may then be extended,
up to six years total.
Can I transfer
my H-1B visa to another company?
Yes, but a new petition must be filed by the company.
What if there is
a change in my working conditions while I'm on
H-1B status?
As long as you continue to provide H-1B services to a U.S. employer,
most changes will not affect your H-1B status. You may change H-1B employers
without affecting status, but your new H-1B employer must file a new visa application
before you start work.
Is there an
annual quota on the number of H-1B visas issued?
Yes. The current annual quota on the H-1B category is 65,000 for each
Fiscal Year.
Is everyone
covered by the annual quota for H-1B visas?
There are certain exceptions to the annual cap:
- Persons who are employed, or
who have received an offer of employment, by institutions of higher
education or a related or affiliated nonprofit entity, as well as those
employed, or who will be employed, by a nonprofit research organization or
a governmental research organization are exempt from the cap.
- Also, there is a special
allocation of H-1B visas for foreign workers with a Master's or higher
level degree from a U.S. academic institution. 20,000 beneficiaries of
H-1B petitions on behalf of persons who hold such credentials are
statutorily exempted from the cap for each year.
****************************************************************
CHRISTOPHER A.
KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced immigration
law for over 25 years. He graduated
from University of California, Berkeley Law School and was a former counsel for
the U.S. Department of Justice in Washington D.C.
Mr. Kerosky has
been recognized as one of the top lawyers in Northern California for 9 years by
“Super Lawyers” Magazine. See www.superlawyers.com.
.
WARNING: The above is a
summary discussing legal issues. It is not intended to be a substitute for
legal advice. We recommend that you get competent legal advice specific to your
case.
