H-1B VISA
The laws regarding the H-1B visa are in constant flux and applicants seriously considering this category as a means of working in the US on a temporary basis should stay informed and updated as much as possible. Because an applicant’s circumstances and the circumstances of his dependent family members may require special attention, the following information is not tailored to any one individual but provides general information about this category.
The H-1B visa allows foreign workers to enter the US and work in a variety of fields ranging from architecture and engineering to health and medicine. The H-1B visa offers a wide range of employment possibilities and is a logical first step toward permanent immigration.
The H-1B categories apply to aliens coming temporarily to perform services in a specialty occupation, or as a fashion model of distinguished merit and ability. The FY2001, 2002, and 2003 cap on H1-B admissions was 195,000 workers. Currently, the annual Congressional cap for H-1B visa is 65,000 workers.
Since there is a limited quota, it is imperative to file a petition on the first day of April in order to be counted toward the quota (cap). A person with just a bachelor decree has chance of getting selected is about 40%. A person with a master degree from US has chance of getting selected is almost 100% as long as he petition is filed on or around April 1 of the year. Once H1B petition is approved, the beneficiary can work from October 1 of the year.
Who is eligible?
A person with at least bachelor decree or its equilevant for the specialty occupation, which requires at least bachelor decree or its equilevant
The initial first step: Labor Condition Application
The first step to hiring most H-1B workers from outside the U.S. is for the employer to file a labor condition application (LCA) with the Department of Labor (DOL). Then the employer is required to file the LCA approval notice with the Petition for Alien Worker. The purpose of filing LCA is to protect US workers and aliens in that the US employer must treat a foreign employee in the way: providing the same terms of the employment and pay the prevailing wage, and equal work environment
Some terms and conditions of the H-1B classification:
Work authorization for H-1B foreign specialty workers is employer-specific (i.e. limited to employment with the approved employer/petitioner). Therefore, he needs not apply for a separate employment authorization documents.
A change of employer requires a new H-1B petition; under some circumstances pursuant to a new provision of the INA, nonimmigrant who was previously issued an H1-B visa or provided H1-B nonimmigrant status may port to a new employer and begin to working for a new H1-B employer as soon as the new employer files a "nonfrivolous" H1-B petition for the nonimmigrant;
Multiple employers require multiple H-1B petitions;
The employer is responsible for return transportation costs for an employee terminated prior to the end of the approved period of employment;
H-1B foreign specialty workers are not required to maintain foreign residence and may seek permanent residence in the U.S.
Dependents
Dependents (spouses and unmarried children under 21 years of age) of H-1B workers are entitled to H-4 status with the same restrictions as the principal. Dependents may not be employed under the H-4 classification;
Including more than one worker in a petition: Each petition may only include one worker.
Document Requirements for H-1B Classification Petition
The petition should be filed by the U.S. employer with:
- A certified labor condition application from the Department of Labor;
- Copies of evidence that the proposed employment qualifies as a specialty occupation;
- Evidence the alien has the required degree
- Copies of evidence of education and experience which is equivalent to the required U.S. degree;
- A copy of any required license or other official permission to practice the occupation in the state of intended employment; and
- A copy of any written contract between the employer and the alien or a summary of the terms of the oral agreement under which the alien will be employed.
H-1B2 Research and Development Project
The H-1B2 category applies to an alien coming temporarily to perform services of an exceptional nature relating to a cooperative research and development project administered by the Department of Defense.
Petition Document Requirements
The Petition for Alien Worker must be filed by the U.S. employer and must be filed with:
- A description of the proposed employment and evidence the services and project meet the above conditions; and
- A statement listing the names of all aliens who are not permanent residents who have been employed on the project within the past year, along with their dates of employment.
H-1B3 Fashion Model
The H-1B3 category applies to a fashion model who is nationally or internationally recognized for achievements, to be employed in a position requiring someone of distinguished merit and ability.
Petition Document Requirements
The Petition for Alien Worker should be filed by the U.S. employer with:
- A certified labor condition application from the Department of Labor;
- Copies of evidence establishing that the alien is nationally or internationally recognized in the field of fashion modeling. The evidence must include at least two of the following types of documentation which show that the person:
- Has achieved national or international recognition in his or her field as evidenced by major newspaper, trade journals, magazines or other published material;
- Has performed and will perform services as fashion model for employers with a distinguished reputation;
- Has received recognition for significant achievements from organizations, critics, fashion houses, modeling agencies or other recognized experts in the field; and
- Commands a high salary or other substantial remuneration for services, as shown by contracts or other reliable evidence.
Copies of evidence establishing that the services to be performed require a fashion model of distinguished merit and ability and either:
- Involve an event or production which has a distinguished reputation; or
- The services are as participant for an organization or establishment that has a distinguished reputation or record of employing persons of distinguished merit and ability.
