Answers for H-1B Temporary Workers

One of the most common nonimmigrant classifications used to work in the United States (US) is H-1B. H-1B Visas are available to foreign workers who come to the United States temporarily to perform services in a “specialty occupation”, or as a fashion model. This article addresses some of the commonly asked questions about the H-1B classification.

What is a specialty occupation? A “specialty occupation” is an occupation that requires a 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. This often means that the foreign worker has full state licensure to practice in the occupation, if such licensure is required to practice in the occupation, completion of the degree required for the position, or experience in the specialty equivalent to the completion of such degree and recognition of expertise in the specialty through progressively responsible positions relating to the specialty. If the foreign worker is a fashion model, the model must be of distinguished merit and ability.

What is the prevailing wage or actual wage? In order to employ an H-1B nonimmigrant worker the employer must pay the greater of the actual wage or prevailing wage. The prevailing wage is the average wage paid to workers similarly employed in the geographical area of intended employment. The actual wage is the average wage paid to workers similarly employed by the same employer. As long as the employee is paid the greater of the prevailing wage or actual wage, the wage requirements of the Department of Labor will most likely be satisfied.

What is the Labor Condition Application or LCA? Prospective H-1b employers must obtain a certification of a Labor Certification Application (LCA) from the Department of Labor (DOL). This application includes certain attestations, a violation of which can result in fines, bars on sponsoring nonimmigrant or immigrant petitions, and other sanctions to the employer. The application requires the employer to attest that it will comply with the following labor requirements: (1)The employer will pay the beneficiary a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for your position in the geographic area in which you will be working, and (2)The employer will provide working conditions that will not adversely affect other similarly employed workers. At the time of the labor condition application there is no strike or lockout at the employer place of business. Notice of the filing of the labor condition application with the DOL has been given to the union bargaining representative or has been posted at the place of business.

What is the H-1B Cap? The H-1B visa has an annual numerical limit “cap” of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities or a nonprofit research organization, or a government research organization are not subject to this numerical cap.

How long can I work on an H-1B visa? As an H-1B nonimmigrant, you may be admitted for a period of up to three years. Your time period may be extended, but generally cannot go beyond a total of six years, though some exceptions do apply under the American Competitiveness in the Twenty-First Century Act (AC21).

Once I begin work on an H-1B for one employer can I work for another employer? H-1B approvals are employer and location specific. This means that the employee can only work for the employer who petitioned for the worker at the location specified. In order for the employee to work for another employer, another petition must be filed and approved for the new location and new employer. This does not bind the employee to the employer. If the employee is offered new employment, the new employer can file a petition for the employee. In most cases once U.S. Citizenship and Immigration Services receives the petition the employee can begin working for the new employer.

Do I have to work full-time to qualify for an H-1B? No. There is no requirement for an individual on an H-1B to work on a full-time basis. This means that an H-1B may be granted for those seeking part-time or full-time employment.

Can I have more than one H-1B employer at the same time? Yes. If an employee has multiple concurrent employers, they can and must obtain a valid H-1B visa to work for each employer.

How long does it take to get an H-1B approval? The time that it takes to process an H-1B petition is generally around three months. Because processing times are determined by case load and often fluctuate throughout the year, it is important to check current processing times to get an accurate idea of how long it will take to process your H-1B visa petition.

Can I speed up the processing time? Yes. U.S. Citizenship and Immigration Services offers, “premium processing” for those that need an expedited decision in their case. Premium processing guarantees a decision in your case within 15 calendar days with the payment of a premium processing fee.

What if I want to become a permanent resident? One of the main advantages of the H-1B visa is “immigrant intent.” This means that holders of an H-1B visa may have the intent to remain permanently in the United States and have the option of filing for permanent residency, a green card. Although the maximum period of stay on an H-1B visa is generally 6 years, if an H-1B visa holder applies for permanent residency before the beginning of their sixth year in H-1B status, they can renew their H-1B perpetually, or until they receive a decision on their permanent residency petition.

Can my family come to the United States with me while I work on an H-1B? Yes. Spouses and unmarried children under 21 years of age may seek admission in the H-4 nonimmigrant classification. Family members in the H-4 nonimmigrant classification may not engage in employment in the United States.

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