The H-1B Visa program is the most common visa type used by foreign students graduating from U.S. universities and for professional workers seeking employment in the U.S. on a temporary basis to perform work in “specialty occupations”. This program allows U.S. businesses 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 such as technology, manufacturing, pharmaceuticals, biotechnology, and education.
The task is to establish that the profession falls within the category of a “specialty occupations” that requires a “theoretical and practical application of a body of highly specialized knowledge” and requires at least a bachelor’s degree in a directly related specific specialty or its equivalent earned in the United States, or the foreign equivalent of a bachelor’s degree. In most cases, it will also be required to show a history of work or educational 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. Our New Jersey H-1B visa lawyer could help you apply for this type of 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:
Our H-1B visa attorney in New Jersey can file an initial application to obtain new status, change status, or extend status depending on your current situation.
“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 directly related 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:
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:
A New Jersey lawyer could help an employee or employer understand the H-1B requirements.
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 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.
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.
The American Competitiveness in the 21st Century Act, passed by Congress in 2000, provides for increased portability of H1-B status. People who were previously issued a visa or otherwise provided H1-B status can now accept new employment and start working immediately 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. An attorney in New Jersey could guide you through a job change on an H-1B visa.
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.
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.
Only 65,000 visas are available each year with an additional 20,000 available for those with advanced U.S> degrees for a total of 85,000 per year. The determination as to who obtains a visa is done via a lottery run by USCIS in March of each year. The start date if selected would be the following October.
Cap-ExemptCertain institutions of higher education, government research organizations and nonprofit entities are exempt from the 65,000 cap and there is no filing deadline for these cases. In addition, persons previously in their initial H-1B stay are also cap-exempt.
Individuals from Chile & Singapore1400 visas are set aside for nationals of Chile and 5,400 are set aside for nationals of Singapore. The filing requirements are basically the same but the visa is only valid in one year increments.
Since 1987, our New Jersey H-1B visa 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 your 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 attorneys want to help. Call our offices today to get started with the application process!
(201) 330-8883