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 “ speciality 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.
Our task
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.
Our office can process H1-B 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.
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.
“ SPECIALITY
OCCUPATION
DEFINED”
“Speciality 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
speciality
(or its equivalent) as
a
minimum for entry into the
occupation
in
the U.S.
To establish that the job qualifies
as a “speciality 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; or
- 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:
- 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
speciality or the
related field;
- Education
training or experience
in
the speciality
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 attest to the
U.S. Labor Dept. on a form entitled
a Labor Condition Application (LCA)
and guarantee 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:
- prevailing wage determination from the local state employment security
office;
- published wage survey for the occupation in the area of intended
employment;
- union contract;
- wage rate published under the Davis-Bacon Act;
- 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
- 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. Any
dismissal is covered, even one
for
cause. The exception is when the
alien voluntarily quits.
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