THE H-1B VISA

WHO QUALIFIES

Welcome to our H-1 section. Here we will try to explain to you what the H-1 visa is all about and how it works. There are books and books written on the visa and the issues are endless. We have tried here to provide you the most important and useful H-1 visa information you need to know and can instantly use.  If you have questions on the H-1 visa, feel free to call us for a free consultation.

Briefly, the H-1B, also called the H-1 or H1 (we will use these terms interchangeably in this article so you become familiar with them) visa is for people in a Specialty Occupation, which is defined as one that requires a 4-year degree or equivalent. In other words, the only way to obtain an H-1 visa is to have a 4-year degree or the equivalent. Every 3 years’ experience in the industry equates to 1 year of college education.

It also includes fashion models of distinguished merit and ability, as well as someone providing a service related to the DOD (Department of Defense) cooperative research and development or co-production project.

TEMPORARY INTENT AND
DUAL INTENT OF THE H-1

As with other visas, you must be entering the United States temporarily and not for permanent work. However, the H1b visa is part of a group of visas that allow for 'dual intent'. In other words, you can enter on a temporary basis with the visa and at the same time have the same employer or a different one apply for a Green Card on your behalf, which, when completed, would allow you to live in the US permanently. Unlike many other visas, the H1 visa does not require you to maintain a foreign residence.

The dual intent situation is quite unique in that you must enter with the intent of working in the United States for a temporary period of time. However, that time period, which is a maximum of 6 years, can be extended if you filed a case for a Green Card/labor certification that has been pending for 365 days or more or if you have an approved I-140 petition for alien worker. So, in reality, many clients enter and don't ever leave, as they apply for a Green Card.  Moreover, many people enter as students under the F1 student visa and then during OPT or Optional Practical Training (a period during which you are allowed to work for a US employer) locate an H-1 visa sponsoring employer, and then a  Green Card employer willing to sponsor for the Green Card. A common question people ask is whether their H-1 sponsoring company must also sponsor the Green Card and the answer is no; they can be two different companies and often are.

SELF PETITIONING H-1 VISA

Although a person who owns a company cannot file a Green Card case on their own behalf, this is not the case with an h-1 visa. These are harder to win than a non-self-petiotioning case, they are possible. However, there are technical rules with respect to these types of cases that must be considered.

H-1 FILING FEES 2010

There are 3 sets of filing fees the employer must pay for the H-1b visa case: The I129 fee is $320. Additionally, there is the $750 ACWIA training fee if the company has no more than 25 employees or $1500 if more than 25. This fee is only paid once. Third, there is a fraud prevention and detection fee of $500. Fourth, if the employee is abroad, there are consulate fees, which are minor compared to these (but additional). The money orders are to be made out to the Department of Homeland Security. The fraud prevention fee has to be separate; the others can be combined. Certain educational institutions are exempt from the $1500 fee. Nonprofits must still pay the fee; spouses and children do not have to.

Additionally, if you want a rapid answer on the approval or denial, you can pay the $1,000 Premium Processing fee to the government and you will receive a response in 15 calendar days.

LABOR CONDITION ATTESTATION

When an LCA [Labor Condition Attestation] (see below) is prepared, it will inform us of the 'Prevailing Wage' for the county in which the worker will work. The person must be paid 100% of that wage determination. In other words, for an H-1 visa case, the worker must be paid what others are paid for that type of work in the county in which they live. An employer cannot simply make up the wage the company wishes to pay.

LCAs are required of all applicants, including doctors, fashion models, and all other workers.

PART-TIME H1B VISA

A part-time H1 is a consideration, especially where the company is smaller in size. Often, employers are not  prepared for the fees involved in an H-1 visa case, let alone the wages. If the wages are much more than an employer is prepared for, an alternative is to simply hire the worker for less hours a week. A very handy feature of the H1 visa is that a person can work part-time. Something to be careful of here is that if the wages are too low, the case may not be approved as the worker may not make enough money to afford the cost of living in a particular city.

This is more of an issue where the position is one of low wages than of higher ones. In other words, if someone makes $15.00 an hour but only works 20 hours a week, it's more of a challenge than a person who makes $90,000 a year but only works half-time, so he or she is stil earning $45,000 and can support themselves while living in the United States.

H-1 ANNUAL CAP

As you many know by now, there is an annual cap of 65,000 visas, less the ones for Chile and Singapore. As a result, there are only 52,800 H1b visas. There are an additional 20,000 available for people who have a Master's degree or higher from a U.S. institution of higher education. The good news is that anyone who received a visa in the past 6 years cannot be counted against this numerical h1 visa cap.

H1 VISA APPLICATION DEADLINE 2010

The application deadline is, for all purposes, April 1st, 2010. This is for people who want to work as of October 1st of this year. If you haven't followed the H1b visa trail lately, the application period begins on April 1st, but on that day two years ago they received so many  applications that the quota was met in a day. This is where the term h-1 lottery arose. They had to choose a certain number of h-1 visa applications from the pool of available applicants.

Last year, the quota lasted several months, much to the surprise of immigration lawyers and the public. This year, 2010, we don't know what will happen. The economy is a bit better, but many factors may have taken place in order to account for the longer availability last year. What happens this year, no one knows. However, if you are certain you want an H1 visa, then apply for it April 1st. There is no benefit in waiting. If you are not sure, then you can take your time, only you know how you feel about it and how important it is to you.

ONLY ONE H-1B PER PERSON

An employer is not able to file more than one petition for an h1 visa, even if one is for the 20,000 for people with a higher degree and one is in the category for people without that benefit. In other words, one H-1B visa application per person.

The employer must be a U.S. employer but does not have to be the one paying the person's salary.

H-1 VISA PORTABILITY

The H-1b offers portability. In other words, an H1B candidate may work for a different H1 employer. As long as the new employer and case are legitimate, filed before the expiration of stay previously authorized, and no illegal work has been conducted (ie without authorization). The person can work for the new employer as soon as the H1B application has been received by the USCIS (as it may take time for the case to be adjudicated). In order to port, or transfer your visa, you will have to file a completely new case for the new position.

If the applicant has a criminal record, a waiver may have to be filed: Click here for more info

H-1 VISA CONTINUED

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