“H-1B” is a term you’ll be hearing frequently in the coming months. If you’re a novice on the H-1B, we hope that we can provide you with some helpful tips on this complicated nonimmigrant visa category.
Foreign workers may enter the United States through several different kinds of nonimmigrant (temporary) employment-based visas. If a foreign national is offered employment in the United States, the applicant must consider what the requirements are for each visa category and whether he or she will be able to meet those requirements.
The H-1B category is designated for temporary professionals to work in the U.S. in a “specialty occupation.” In general, “specialty occupation” is defined as a position that requires at least a Bachelor’s Degree or equivalent (12 years of industry experience), in which case a U.S. equivalency evaluation will need to be obtained. An applicant’s credentials must be somewhat related to the professional job to be performed in the U.S. It is not enough for an applicant to possess a Bachelor’s Degree; the job itself must also require a degree.
Here are some other important points to note:
• LIMITED NUMBER: An H-1B visa is a “hot ticket item,” if you will; it is not easy to obtain because there are not many to go around. Each year, Congress limits the number of H-1B nonimmigrants admitted to the U.S. to 65,000 (with an additional 20,000 reserved for applicants with U.S. Master’s Degrees).
• KEY DATES TO REMEMBER: An applicant/employer can prepare for an H-1B filing in early 2016 for submission to USCIS no earlier than April 1, 2016. There is no guarantee the petition will be selected for adjudication; applications are generally accepted for a five day period or until the cap is filled; petitions are subject to random lottery selection for review. If the application is selected and approved, the H-1B would be valid for use beginning October 1, 2016 for up to three years with the possibility to renew up to a maximum of six years. Upon approval, the applicant must attend a visa appointment abroad (unless the applicant is Canadian).
• THE EMPLOYER’S ROLE: There are numerous obligations of an H-1B employer that must be considered. The company must be a viable entity that can pay the applicant the prevailing wage for someone in a similar position in the location where the work is primarily performed. A certified Labor Condition Application (ETA Form 9035) is a prerequisite to H-1B approval. The LCA must be certified by the DOL before the petition is submitted to USCIS. The employer must also document compliance with the LCA requirements in a public access file (PAF), which our office will help prepare. The LCA and PAF contain standard attestations that the employer must make, as well as basic wage and location information about the proposed H-1B employment, including rate of pay, period of employment, and work location.
• FEES: An employer is also required to pay certain H-1B filing fees for submitting an application; under very limited circumstances, the premium processing fee may be paid by an employee so long as such payment does not offset against the beneficiary’s wages and/or benefits paid as stated on the Labor Condition Application.
Government fees include the following: a $325 Filing Fee; a $500 Fraud Detection and Prevention Fee; a $750 or $1,500 ACWIA fee (based on having less or more than 25 employees in the U.S., including those at any U.S. affiliates or subsidiaries); a $1,225 Premium Processing Fee (optional: for faster government response/decision in 15 calendar days); and POSSIBLY: $290 I-539 fee for accompanying spouse or dependents under 21.
If an application is not selected in the lottery for adjudication, filing fees will not be deposited.
If you are interested in applying under the H-1B category or would like more information, call to schedule a consultation with one of our attorneys today!