H-1B Specialty Occupations
The H-1B program allows U.S. employers to sponsor employees for employment requiring a minimum of a bachelor’s degree. Typically applications must be filed during the first five days in April for an employee to begin work October 1st of the same year. Planning for new H-1B applications should begin during the previous December to February for this reason. Our office also handles transfers to new employment, amendments and extensions for current employment.
Established by the Immigration Act of 1990 (IMMACT), the H-1B nonimmigrant visa category allows U.S. employers to augment the existing labor force with highly skilled temporary workers. H-1B workers are admitted to the United States for an initial period of three years, which may be extended for an additional three years. The H-1B visa program is utilized by some U.S. businesses and other organizations to employ foreign workers in specialty occupations that require theoretical or technical expertise in a specialized field. Typical H-1B occupations include architects, engineers, computer programmers, accountants, doctors and college professors. The current annual cap on the H-1B category is 65,000 of which 6,800 are set aside for Chile and Singapore. The H-1B Visa Reform Act of 2004, which took effect on May 5, 2005, changed the H-1B filing procedures for FY 2005 and for future fiscal years. The Act also makes available 20,000 new H-1B visas for foreign workers with a master’s or higher level degree from a U.S. academic institution.
The H-1B visa offers a wide range of employment possibilities and is a logical first step toward permanent immigration. In order to qualify for H-1B classification, the applicant must have at least a bachelor’s degree or its equivalent AND the job sought must require at least a bachelor’s degree or its equivalent. Because this is not a self-petitioning category, the applicant must have a sponsoring employer in the US. The spouse and unmarried children below the age of 21 are allowed to accompany or join the H-1B worker as H-4 dependents. However, they cannot work unless they qualify for a work visa. H-4 dependents can enroll and attend schools in the US without obtaining a student visa.
The petition process begins with the sponsoring employer filing a Labor Condition Application (LCA) with the Department of Labor. Upon obtaining an approved LCA the employer files the petition with Immigration. The petition must be filed with documentation that shows the job is a professional or specialty occupation and that the H-1B applicant is qualified for the position. Because the H-1B visa requires a US sponsor, the applicant must seek a US employer who is willing to hire the applicant temporarily, pay the applicant the prevailing wage for the offered position and file the petition and supporting documents with Immigration. The sponsoring employer must file a Petition for Non-immigrant worker with the Immigration office having jurisdiction over the place of employment. If either the employer or the applicant wishes to expedite the H-1B petition so an initial determination is made within 15 days of the filing, it may request premium processing for an additional fee of $1,225.
After approval, Immigration will send a Notice of Action to the employer. The employee may either change status to H-1B if in the US or the employer then notifies the applicant and sends all the required documents to the applicant who can then apply for his H-1B visa at the US consulate in his home country. Whether to consular process is a consideration that will be based upon the circumstances of the case.
Both the applicant and the employer are required to submit documents for the H-1B visa.