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H-1B Work Visa Attorney in New Jersey

New Jersey Immigration Lawyer

The H-1B Visa program is the most common visa type used by U.S. employers to hire foreign- born professionals on a temporary basis to perform work in "specialty occupations". This program allows U.S. business to recruit and hire the best-qualified candidates from around the world, and compete on a level playing field with foreign companies in such key industries as high-tech, manufacturing, pharmaceuticals, biotechnology, and education.

The task of your New Jersey immigration lawyer is to establish that the professional falls within the category of a "specialty occupation" which requires "theoretical and practical application of a body of highly specialized knowledge" and at least a bachelor's degree earned in the United States or the foreign equivalent of a bachelor's degree. The visa is valid for six years but initially granted for three and may be renewed. There is an extension available if the alien has filed for an immigrant visa 365 days before the expiration of the six year period.

Do you need help completing the application?

Our office can process H-1B applications for employers thought the U.S. To accommodate those who do not live within our geographic area, we will prepare all necessary documents by communicating with the alien and employer by fax, e-mail, and mail. The alien has the option to file under Premium Processing in which the USCIS will furnish a direct contact at USCIS and a guaranteed quick response at an extra cost to the alien. Regular Processing usually takes several months, this time frame depends upon the current processing times for the USCIS Service Center.

To ensure the fastest approval from the USCIS, our office requires the cooperation from the employers and the aliens. To avoid surprise please note that the USCIS will require proof that the employer has the ability to pay the wage mandated by the Department of Labor, and we will request that the employer furnish us with a copy of the company's Federal Income Tax Returns and/or audited financial statements from the previous calendar year.

The current law limits the number of new visa holders each year to 65,000.. Laws exempt up to 20,000 foreign nationals holding a master’s or higher degree from U.S. universities from the cap on H-1B visas.

The USCIS starts accepting applications on April 1st of each year for a work start date of October 1st which is the first business day of the new fiscal year for the US Government. Beneficiaries not subject to the annual cap are those who currently hold H-1B status or have held H-1B status at some point in the past six years

EMPLOYER DOCUMENTATION REQUIREMENTS:

The employer will be required to provide the following:

  • the alien's position
  • the alien's duties and responsibilities in this position
  • the number of employees in the company
  • the number of employees the alien will supervise
  • the company's income for the previous year
  • the year of incorporation of the company
  • the name and direct phone and fax number of the person with whom we will be in contact concerning the alien's visa processing.

ALIENS DOCUMENTATION REQUIREMENTS:

The alien will be required to provide the following documents:

  • resume
  • university transcripts and diploma (may need to be evaluated)
  • letters of recommendation from previous employers in the same field
  • previously issued visas
  • alien's I-94 card
  • alien's passport
  • if the alien will be applying with dependents (i.e. spouse and/or children under 21), the civil documents of all family members, including birth and marriage certificates, and the divorce decrees and death certificate where applicable.

We can file an H-1B in the U.S. while the alien is in status or at the U.S. Embassy in the alien's home country if the alien has not overstayed for more than 180 days. Moreover, the alien has the option to file under Premium Processing in which the USCIS will furnish us with a response at an extra cost to the alien. Regular Processing usually takes between 3-4 months, however this time frame depends upon the current processing times for the USCIS service center.


"SPECIALTY OCCUPATION DEFINED"

"Specialty Occupations" are defined as occupations that require:

1. A theoretical and practical application of a body of highly specialized knowledge, and

2. The 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 U.S.

To establish that the job qualifies as a "specialty occupation" one or more of the following must be met:

1. A bachelor's or higher degree or its equivalent is normally the minimum entry requirement for the position;

2. The degree requirement is common to the industry or, in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree;

3. The employer normally requires a degree or its equivalent for the position; or

4. The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree

Examples are architects, doctors, engineers, lawyers, professors, accountants, teachers (elementary, secondary, colleges, or seminaries), researchers, medical personnel, computer professionals, marketing managers and fashion designers.

REQUIRED CREDENTIALS:

It is not enough to show that the position is a "specialty occupation" The alien must also show that he has the requires credentials for the position offered with proof of the one or more of the following:

1. Full state license, if required for practice in that State;

2. U.S. bachelor's degree or higher or its foreign equivalent (evaluated by a credential evaluator)in the specialty or the related field;

3. Education training or experience in the specialty equivalent to the completion of the degree, (USCIS allows a three years of work/specialized training can be substituted for each year of college that is missing)

EMPLOYERS OBLIGATIONS:

A U.S. employer must file and obtain an approved Labor Condition Application (LCA) from the U.S. Dept. of Labor CA) which attests to the following:

WAGE:

The foreign professional will be paid at or above the rate paid for a similar position at the employer's own offices, or the prevailing wage for that position in the geographic area based on the best available information. The wage is determined by one of five methods. The first four are the best source of date and are accepted by USCIS:

1. prevailing wage determination from the local state employment security office;

2. published wage survey for the occupation in the area of intended employment;

3. union contract;

4. wage rate published under the Davis-Bacon Act;

5. another legitimate source of wage information.

IMPORTANT NOTE: The employer is required to provide proof of the ability to pay the required wage by providing copies of past and current tax returns and/or other corporate documents.

WORKING CONDITIONS:

The foreign professional will not adversely affect the working conditions of U.S. colleagues and there is:

  • NO STRIKE OR LOCKOUT AT WORKSITE:
    The alien is not being hired to replace others.
  • GOOD FAITH RECRUITMENT EFFORT WAS DONE:
    A good faith effort to recruit U.S. workers at the prevailing wage was made but no one was as qualified as the alien.
  • NOTICE OF THE LCA FILING WAS POSTED ABOUT THE WORKPLACE

PUBLIC ACCESS FILE:

The employer is required to keep a public file with among other things a copy of the LCA containing original signatures and proof that the alien received a copy of the LCA, documentation of the wage to be paid, the prevailing wage determination from SESA or another source, proof of wage to be paid, system used to arrive at the wage, postings or notices to union, and summary of benefits offered to alien showing it's the same as that offered to U.S. workers.

H1-B DEPENDANT EMPLOYERS MUST MAKE ADDITIONAL ATTESTATIONS:

Employers who currently have H1-B employees (as defined by regulations) must state that they are not displacing protected U.S. workers and that they have attempted to recruit U.S. workers. Penalties are imposed for violations.
Employers who have 25 or fewer employees and 7 are H1-B non-immigrants are H-1B dependent. If they have 26-50 employees, no more than 12 can be H-1B holders. Employers with 51 or more employees are H-1B dependent if the number of H1-B non-immigrants employed is equal to 15% of the number of full-time employees. Certain H-1B employees are exempt if they possess a master's degree and earn $60,000 per year.

H1-B EMPLOYEES CAN CHANGE JOBS:

The American Competitiveness in the 21st Century Act passed by Congress in 2000 provides for increased portability of H1-B status. Persons previously issued a visa or otherwise provided H1-B status can now accept new employment and start working immediately before and subject to the final approval of the new petition. However if the petition is denied, work authorization ceases. In order to be eligible the individual must have been lawfully admitted to the U.S., the new petition must have been filed before the expiration of the original H1-B and the individual must not have been employed without authorization in the U.S. before the filing of such petition.

Travel Costs Upon Dismissal During H-1B Period:

If an H-1B employee is dismissed before the end of their authorized stay the employed must bear the reasonable cost of returning the alien home and they must notify the USCIS. Any dismissal is covered, even one for cause. The only exception is when the alien voluntarily quits.

Dependents of H-1B Visa Holders

If you have an H1-B visa, you may bring members of your immediate family (spouse and children under the age of 21) to the United States as dependents under an H-4 visa. As long as you have legal status with an H1-B visa, family member dependents may also stay. H-4 visa holders may attend school, obtain a driver's license, and open a bank account in the U.S. However, H-4 visa holders may not be eligible to work or obtain a Social Security number.

In May of 2014, the USCIS proposed new rules regarding work permits for H-4 visa holders. The new rule would allow H-4 visa holders to work in certain circumstances if the spouse holding H-1B visa status is the beneficiary of an approved I-140 Immigrant Visa Petition or has filed for an extension of H-1B visa status on the basis of an approved I-140 petition.

Get Help from a H-1B Visa Lawyer in New Jersey

When looking to obtain a H-1B visa for the United States, the New Jersey immigration attorney at The Law Offices of Lloyd E. Bennett, Esq., P.C. has the skill and knowledge needed in order to properly prepare your application for approval by the USCIS. Our office has helped thousands of people obtain visas since 1987 and has the immigration law experience to help you. Please contact us today for assistance.