The H-1B visa is a non-immigrant visa category in the United States that enables U.S. employers to temporarily employ foreign workers in specialty occupations. The H-1B visa program plays a significant role in bringing skilled professionals to the United States, contributing to innovation, economic growth, and competitiveness in various industries. This general overview provides an analysis of the H-1B visa program, shedding light on its significance, eligibility criteria, application process, and broader implications.
Purpose of H-1B Petitions:
The primary purpose of H-1B petitions is to address shortages of skilled workers in specific fields within the U.S. job market. The program allows U.S. employers to hire foreign nationals who possess specialized expertise that is often not readily available among the domestic workforce. This promotes innovation, economic growth, and knowledge exchange in sectors such as technology, science, engineering, medicine, and more.
Eligibility Criteria:
Not only the prospective employee but also the proffered position should qualify for the H-1B visa. The occupation requires:
Theoretical and practical application of a body of highly specialized knowledge; and
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 United States.
The position must also meet one of the following criteria to qualify as a specialty occupation:
Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the particular position
The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, the job 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.
For the beneficiary to qualify to perform services in a specialty occupation he/she must meet one of the following criteria:
Hold a U.S. bachelor’s or higher degree required by the specialty occupation from an accredited college or university
Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree required by the specialty occupation from an accredited college or university
Hold an unrestricted state license, registration, or certification that authorizes you to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment
H-1B Petition Process:
The process of filing an H-1B petition involves several steps:
Job Offer: To initiate the H-1B process, an eligible U.S. employer must first offer a job to a foreign national in a specialty occupation position. The job offer should include details about the role, responsibilities, qualifications, and compensation.
Electronic Registration: Prospective petitioners seeking to file H-1B cap-subject petitions, including for beneficiaries eligible for the advanced degree exemption, must first electronically register and pay the associated $10 H-1B registration fee for each prospective beneficiary when registration period opens. This is typically in March. If more registrations are submitted than projected as needed to meet the cap (65,000 regular cap and 20,000 advanced degree exemption cap), for a given fiscal year, registrations are selected by a random selection process. If the registration your employer submitted on your behalf is selected, they may file a petition for you with a start date of Oct. 1 (or later).
Labor Condition Application (LCA): Before filing an H-1B petition, the employer must obtain a certified Labor Condition Application (LCA) from the U.S. Department of Labor (DOL). The LCA certifies that the employer will comply with labor laws and wage requirements, and that hiring the H-1B worker will not adversely affect U.S. workers.
Form I-129 Petition: Once the LCA is certified, the employer can file Form I-129, Petition for a Nonimmigrant Worker, with U.S. Citizenship and Immigration Services (USCIS). This includes details about the position, employer, the foreign worker, the job offer, supporting documentation, and fees.
Approval and Consular Processing: Once the petition is approved, USCIS issues an approval notice (Form I-797) to the employer. If the beneficiary is already in the U.S. in some nonimmigrant status, the U.S. employer can request a change of status together with the H-1B petition. If the beneficiary is not in the U.S., then he/she can apply for an H-1B visa at a U.S. consulate or embassy abroad. Upon receiving the visa, the beneficiary can enter the U.S. and start working for the sponsoring employer from the approved start date.
Duration and Extensions:
Initial H-1B visas are usually granted for three years, with the possibility of a three-year extension, totaling a maximum of six years. Extensions beyond the six-year limit may be possible under certain circumstances, under sections 104(c) and 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21), 8 CFR 214.2(h)(13)(iii)(D) and (E).
If the beneficiary is laid off, fired, quit, or otherwise cease employment with your employer, he/she may have up to 60 consecutive days or until the end of your authorized validity period, whichever is shorter, to find new employment, change status, or depart the country.
Change of Employers:
H-1B portability enables H-1B employees to switch companies. The new employer must properly file a new, non-frivolous H-1B petition on behalf of the beneficiary, while the beneficiary is in H-1B status and the beneficiary can start working for the new employer once the transfer petition is submitted.
Dependents:
H-1B visa holders' spouses and unmarried children under 21 can accompany them on H-4 visas. H-4 visa holders can live in the U.S. but generally cannot work, although there have been regulatory changes that allow certain H-4 spouses to apply for work authorization under specific circumstances. Additionally, H-4 visa holders who are eligible for employment authorization need to apply for an Employment Authorization Document (EAD) through USCIS. They can only work after receiving the EAD approval.
Dual Intent:
H-1B holders are allowed to have "dual intent," meaning they can pursue permanent residency while on an H-1B visa, without jeopardizing their nonimmigrant status.
Compliance and Monitoring:
Employers who sponsor H-1B workers are subject to compliance regulations, including paying the prevailing wage, maintaining the terms of employment, maintaining employer-employee relationship, not displacing U.S. workers, etc. The DOL and USCIS may audit employers to ensure compliance. Regulations require that employers must begin paying LCA-stated wages when the employee “makes him/herself available for work” but not later than 30 days after employee’s entry into the United States (if the prospective H-1B employee is outside the U.S.) or 60 days from the date that USCIS grants a Change of Status (if the prospective H-1B nonimmigrant is inside the U.S.).
Cap-exempt H-1B Visas:
Cap-exempt H-1B visas are a specialized category within the H-1B program that do not count towards the annual H-1B visa cap. These visas are typically granted to foreign workers who will be employed by an institution of higher education (or related or affiliated nonprofit entities), or nonprofit/governmental research organization. Cap-exempt H-1B visas provide more flexibility for both employers and employees, as they can be applied for and granted at any time during the year, without being subject to the H-1B lottery system that applies to the regular H-1B cap. This exemption helps these entities attract and retain highly skilled professionals, making it easier for them to contribute to important research, education, and public service initiatives in the United States.
Immigration Policy Changes:
The H-1B program is subject to constant changes in immigration policy and regulations. The availability of visas, wage requirements, and other aspects of the program can be influenced by government decisions.
In conclusion, H-1B petitions play a pivotal role in addressing skills shortages and fostering innovation in the U.S. job market. By facilitating the employment of skilled foreign professionals, the program contributes to the nation's economic growth and technological advancement. In addition to specialty occupation workers, the H-1B classification applies to individuals performing services related to a Department of Defense cooperative research and development project or coproduction project, and to individuals performing services of distinguished merit and ability in the field of fashion modeling. While it is an essential tool, its administration and impact are subjects of ongoing discussion and scrutiny. As the program continues to evolve, it remains a symbol of the American dream for countless individuals seeking to contribute their expertise to the land of opportunity.
Hari Subhash, Esq.
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