What is an H1B Visa?
H1B visas are temporary permits for travel and stay in the U.S. to work in a specialty occupation.
The H1B visa allows U.S. employers to recruit foreign professionals in specialty occupations to U.S. companies. The key to the H1B visa is specialty occupation.
Unlike other temporary nonimmigrant visas, the U.S. company applies for the H-1B visa on behalf of the alien, and the alien is simply the beneficiary of the application. Citizens of foreign countries may have a U.S. company apply on their behalf for an H1B visa if the job opening is a specialty occupation and the alien is qualified for the specialty occupation.
How long can I stay on an H1B Visa?
An alien can remain in the U.S. on an H1B visa for an initial period of three (3) years on an H1B visa. However, an alien can request a first extension of stay for a period of up to two (2) years, and a second extension of stay for a period of one (1) year. There is generally a maximum stay of six (6) consecutive years. The alien can also recapture time spent abroad, wherein time spent abroad does not count against the six (6) year maximum stay. The alien must opt in to recapture (put the USCIS on notice).
What is the H1B cap?
There is a limit on the number of H1B visas that the U.S. government will issue every year. The cap is generally set at 65,000 visas. The cap period begins on April 1 of each year, and is usually full within several days. Therefore, it is imperative that the petitioner-company apply for the H1B visa as early as possible.
Why apply for an H1B Visa?
Companies looking to bring in specialized knowledge from abroad and outside of their company often use the H-1B visa. Likewise, aliens can comfortably accept specialized positions in the U.S. because the H-1B visa requires the employer to pay for the worker’s return to the native country if the worker resigns or is terminated.
What are the requirements to apply for an H1B Visa?
An H1B has at least three (3) major requirements: (1) the job opening must be a specialty occupation; (2) the alien must be qualified for the specialty occupation; and (3) the employer must file a Labor Condition Application (LCA) Form ETA 9035 with the Department of Labor.
(1) Specialty occupations include: occupations that typically require highly specialized knowledge in a field of human endeavor, such as Biotech, Accounting, Architecture, Arts, Banking, Business, Computing, Education, Engineering, Finance, Health care, IT, Law, Marketing, Mathematics, Medicine, Physical Scientific Research, Recruiting, Sales, Social Science, Telecommunication, and Theology.
(2) Alien qualification for specialty occupation requires that the alien generally possess at least a bachelor’s degree or its equivalent (this usually entails a three (3) year foreign degree and three (3) years of relevant post-graduate experience).
What is a Labor Condition Application (LCA)?
A Labor Condition Application (LCA) is a 4-page sworn document, also known as the Form ETA 9035, that the employer must file with the U.S. Department of Labor. By signing and filing the Labor Condition Application, the employer swears that the H1B visa employee is paid the prevailing wage for the work performed, and that the employment of an alien for the job opening will not adversely affect the working conditions of similarly employed U.S. workers. The LCA also requires the employer to swear to pay for the worker’s return home if the employer terminates the employment or if the worker resigns.
What is dual intent?
Dual intent means that the temporary visa holder can apply for a green card to become a permanent resident of the U.S. while on an H1B visa. This is one of the benefits of the H1B visa as opposed to other temporary nonimmigrant visas. The H1B visa allows for dual intent. If the H1B employer is willing, the employer can also sponsor a foreign employee in H1B status for a green card application.
Any alien applying for an H1B visa should consult an immigration attorney before filing an application.
Miami International Attorneys, P.L.