NONIMMIGRANT VISAS - H-1 B Visas
The H-1B visa is a non-immigrant employment based visa
for workers coming to the USA to perform a "specialty occupation."
Workers from Mexico and Canada can get a special TN status under the NAFTA
treaty. The H-1B status allows foreign workers to work in the USA for
a maximum of six years. It is granted for three years and can only be
renewed once for an additional three years. The Information Technology
industry uses this type of visa frequently to fill vacant positions. Many
H-1B applicants are engineers or computer programmers. Quotas are set
every year for the H-1B visa by the government. United States government
will not approve an application you submit because you must have an offer
from an employer and the employer must file the petition on your behalf.
An employer can be an individual, partnership, or corporation. Applications
are "job specific." If your situation changes (for example,
you lose your job or change locations), you must file a new H-1B visa
petition. The visa is only valid for work with the employer that filed
the original petition.
In order to qualify for this type of visa, you must have
a four-year college degree or the equivalent education and experience.
Your employer does not have to prove that there are no available U.S.
workers for this position. However, the job offered must require a four-year
degree. You will be denied an H-1B visa if you have a four-year degree
but the job does not require one.
Also, you must prove that your education is equivalent
to the minimum requirements of a United States bachelor's degree. Sometimes
work experience can be substituted for part of a degree. There are organizations
that specialize in certifying your credentials for a fee. For example,
if your actual education amounts to only two years of college, but you
have six years of work experience, the evaluator may determine that your
education and experience add up to a four-year bachelor's degree.
Spouses and children under the age of 21 may be eligible
to come to the U.S. for the duration of the H-1B holder’s authorized
stay and will be granted H-4 visas. The H-4 will not allow them to work.
Dependents under the age of 21 are allowed to attend college and school.
There are several steps in obtaining an H-1 B
- Prospective employers must obtain a Labor Condition Application (LCA)
and have it certified by the U.S. Department of Labor before the H-1B
petition can be filed.
- The prevailing wage and actual wage must be determined and compared.
The employer is required to pay the higher of the two. The prevailing
wage is determined by the State Employment Security Agency by completing
a special form, which asks the employer for the responsibilities, skills
and experience needed for the job. The actual wage is determined by
comparing other workers in the same positions with the same level of
- Once the prevailing wage has been determined, then the LCA can be
submitted. This is a three-page form that contains information about
the employer. By completing and signing the form, the employer is agreeing
to pay the higher of the two wages, that the employment of this individual
will not adversely affect the conditions of other workers and that there
is no strike for their occupation at the workplace. Recently, Congress
determined that employers must attest that they will offer H-1B visa
holders the same benefits as their other workers. This includes health,
life, medical, retirement, stock options and bonuses.
- The form is then mailed or faxed to the Department of Labor and they
return a certified copy to the employer.
- The employer must post notices at two conspicuous places at their
business of the H-1B filing for ten days or provide notice of the filing
to the collective bargaining representative for their employees. The
LCA form can be used for the actual posting as well.
- After the Department of Labor accepts the LCA, then the employer can
file your H-1B petition. If you are out of the country, the INS will
send notification of your approval to the U.S. consulate in your country
and you can apply there using the I-797 Approval form for the visa.
In your petition filing be sure to provide supporting documents in your
petition such as the approved LCA, educational transcripts, or a letter
from employer describing the position and licenses. The employer must
include the fee for the petition ($130 base fee, plus $1000 if expedited
(premium) processing is requested)
- Processing times vary depending upon service center and the visa.
It could be up to a three to four month wait. If the employer can show
a substantial need for the employee, INS might approve the petition
sooner. However, employment cannot begin until INS has issued the appropriate
- If the employee is terminated, the employer is responsible for the
employee's return trip home.