Services - Employment Based Immigration - H-1B Visa
What is a H-1B Visa?
H1B visa is a non-immigrant visa that was designed to allow US employers to hire foreign workers in specialty occupations to work in the US for particular period of time. To be eligible for H1B visa, employer and employee must meet following requirements:
I. You must have an employer-employee relationship with the petitioning U.S. employer. In order to apply for H-1B visa, an employer must be willing to sponsor foreigner by filing a petition with USCIS.
U.S. Employer. An employer sponsoring H-1B worker must be a “U.S. employer". A U.S. Employer is a person, firm, corporation, contractor or other association or organization in the United States with an IRS tax identification number known as a Federal Employer Identification Number (FEIN).
Employer-Employee Relationship. There must be an employer-employee relationship between petitioning US. Employer and potential employee. In general, a valid employer-employee relationship is determined by whether the U.S. employer may hire, pay, fire, supervise or otherwise control the work of the H-1B worker.
How do I demonstrate an employer-employee relationship if I own my own company? Until relatively recently, it was unclear whether or not individuals who owns business could get his company to sponsor his to obtain an H-1B Visa. USCIS has clarified that a nonimmigrant alien who is the owner of a petitioning company created in the US may establish a valid employer-employee relationship for the purposes of sponsoring an H-1B visa if the control of your work is exercised by others. For example, if your company has a board of directors, preferred shareholders, investors, or other factors that show your organization has the right to control the terms and conditions of your employment (namely the right to hire, fire, pay, supervise or otherwise control the terms and conditions of your employment), then you may be able to meet this requirement
Ability to pay. The employer must have the ability to pay the employee. For example, Victor is the owner of IT company. He wants to hire computer engineer Andrew to develop software. Victor is willing to pay Andrew $70,000 for working on this project. However, at the time of filing petition Victor has only $50,000.00 on his bank account. Because Victor doesn’t have enough money to pay potential employee salary, Victor can not meet first requirement and therefore is ineligible to sponsor H-1B worker.
II. Your job must qualify as a special occupation. The definition of “specialty occupation” means occupation that requires: (1) theoretical and practical application of a body of specialized knowledge; and (2) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States” (8 CFR 214.2).
In other words, if performing job responsibilities doesn’t require bachelor’s degree, you can not apply for H-1B visa. Examples of specialty occupations include: lawyers, architects, engineers, teachers, physicians, nurses, medical professionals, computer professionals, accountants, attorneys, social workers, economists, and other professionals.
III. Your must meet educational requirements to apply for H-1B visa. The employer must show that the foreign worker meets the specific educational requirements to be engaged in the specialty occupation. H-1B worker needs to have a relevant bachelor's from a college or university in the United States, the foreign equivalent of a U.S. bachelor's degree or the equivalent combined education and experience.
If the alien worker was awarded his/her degree from an institution not located in the U.S., that degree must be evaluated to determine if it can be considered equivalent to a U.S. awarded degree.
If an employee does not have bachelor degree, he can still be entitled to apply for H1b visa only if he has an extended working experience. Three years of professional experience is the equivalent of 1 year of university education. Below is the example of applying this formula:
"Igor is from Ukraine and has been working as a software engineer for more than 6 years. He only finished 2 years of university and never had a chance to complete his bachelor degree. Regardless of the absence of bachelor degree, Igor is eligible to apply for H-1B visa because 3 years of related working experience is equivalent 1 year of university education. Igor’s 6 years of working experience make up for the 2 year shortage that he needed to complete bachelor degree. Therefore, he may apply for an H-1B visa."
What Steps Does Employer Needs to Take to Sponsor H-1B Worker?
Determining Prevailing Wage for H-1B worker.
The Immigration and Nationality Act requires that the hiring of a foreign worker will not adversely affect the wages and working conditions of U.S. workers comparably employed. To comply with the statute, the U.S. Department of Labor requires from US employer to pay H-1B worker the prevailing wage in the area of employment.
The “prevailing wage” is defined by Department of Labor Department as the average rate of wages paid to workers similarly employed in the area of intended employment. The US employer has to send a formal request to Department of Labor in order to determine the acceptable prevailing wage rate for his potential employee. The processing time for prevailing wage determination is 6 weeks.
Filing Labor Condition Application with Department of Labor.
The purpose of filing this application is to bind the employer to pay the prevailing wage, offer the same benefits to H-1B visa holders as other employees, and assure that employment of the foreign worker will not negatively affect the conditions of other workers. The processing time for approving Labor Condition Application usually takes 1 week.
Filing a petition with USCIS
To sponsor an H-1B worker, the employer must file an I-129 petition with USCIS, asking the agency to approve the foreign worker for H-1B status. USCIS will need approximately 2-4 months to adjudicate the H-1B petition and issue an H-1B approval.
Duration of H-1B visa
The initial H-1B visa may be issued for up to three years. It may then be extended in the first instance for up to two years, and later on for one year, for a maximum of 6 consecutive years.
Cap on H-1B Visas
Every year there is an annual limit of new H-1B visas that can be issued, which is also known as the H1B Cap. The maximum number of visas is capped at 65,000 per fiscal year. Out of these, 6,800 are reserved for Chile and Singapore under Free Trade Agreements between these countries and the United States. An additional 20,000 are available specifically to those individuals who have received a Master’s degree or higher from a U.S. institution of higher education. If there are any visa numbers left under the Chile/Singapore quota, they will be used for candidates that fall under the regular cap.
Best time to start the H-1B Process
History and experience shows that quota for H-1B visas is exhausted in less than 7 days starting from the date when USCIS starts accepting H-1B petitions. To ensure the best chance of getting working visa for your employee, employers must start working with immigration attorney well in advance of the April 1 of the current deadline. If you fail to file the H-1B petition on April 1 of the current year, you will have to wait until April 1 of the next year to file H-1B petitions again, and your employees may risk losing legal status and work authorization while in the US.