H-1B WORK VISA ATTORNEY IN NEW JERSEY
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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 key industries: high-tech, manufacturing, pharmaceuticals, biotechnology, and education.
The task is to establish that the professional falls within the category of a "specialty occupation" that 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. In most cases, it will also be required of you to show a history of work experience in the same field as the posted opportunity.
The visa is valid for six years, but it is initially granted for three and may be renewed. There is an extension available if the applicant has filed for an immigrant visa 365 days before the expiration of the period.
Specifics of the H-1B Visa
Though the parts are not equal, both the American employer and foreign applicant have parts in the application process. The American employer needs to be able to prove that his or her open position is one appropriate for this selective visa, and the foreign applicant needs to prove he or she is qualified for it.
Employer documentation requirements include the following:
- A detailed description of the applicants job
- A detailed description of the company and its history
- Direct contact information of the individual working with applicants
- Labor Condition Application showing proper wage requirements and working conditions
Once the job posting has been approved by the USCIS, applicants will be able to see them and begin submitting applications to obtain the position.
The applicant will be required to provide the following documents:
- Resume, university transcripts, and diplomas
- Letters of recommendation from employers in the same field
- Previously issued visas, an I-94 card, and passport
- Required records of dependents if traveling to the U.S. with the applicant
Our office can file an H-1B in the U.S. while you are in status at another place of employment or at the U.S. Embassy in your home country if you have not overstayed for more than 180 days. Moreover, you have the option to file under Premium Processing, in which the USCIS will furnish a 15-day response at an extra cost to the alien. Regular Processing usually takes between 3-4 months or longer during the filing season. The processing time varies for the different USCIS service centers processing the case.
"Specialty Occupation Defined"
"Specialty Occupations" are defined as occupations that require a theoretical and practical application of a body of highly specialized knowledge, and 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:
- A bachelor's or higher degree or its equivalent is normally the minimum entry requirement for the position.
- 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.
- The employer normally requires a degree or its equivalent for the position.
- 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 of professionals in "specialty occupations" are architects, doctors, engineers, lawyers, professors, accountants, teachers (elementary, secondary, colleges, or seminaries), researchers, medical personnel, computer professionals, marketing managers and fashion designers.
It is not enough to show that the position is a "specialty occupation." The alien must also show that he or she has the required credentials for the position offered with proof of the one or more of the following:
- Full state license, if required for practice in that State;
- U.S. bachelor's degree or higher or its foreign equivalent (evaluated by a credential evaluator) in the specialty or the related field;
- 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)
A U.S. employer must file and obtain an approved Labor Condition Application (LCA) from the U.S. Dept. of Labor which attests to the following:
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 or other Government sources.
IMPORTANT NOTE: The employer may be 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.
The employer must attest that:
- The foreign professional will not adversely affect the working conditions of U.S. colleagues;
- These is no strike or lockout at the worksite;
- 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 open position was posted about the worksite.
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 Dependent 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.
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 Immigration Assistance from the Law Offices of Lloyd E. Bennett
Since 1987, our New Jersey immigration lawyers have helped over 10,000 individuals and entities successfully resolve their immigration issues. We have the resources, experience, and insight to get your case on the best possible path for success—keeping you informed and educated at every step. If you call today, we can get started on your case immediately and work toward a fast, efficient solution. Keep in mind: only an attorney can give you legal advice regarding your visa application.
It all begins with an initial consultation. During an initial, no-obligation appointment, our team looks at your immigration history to determine if you qualify for an H-1B visa. We also look at your family's immigration history to find out if you might have other options. Once we know every path you case can take, we help you choose the best one to achieve your goals.
If you aren't sure if you are eligible for an H-1B visa, our New Jersey immigration attorneys want to help. Call our offices today to get started with the application process!