The attorneys at ilexlaw PLLC in Washington & Virginia take pride in specializing in H-1B visas.
In the modern US economy, many companies rely upon foreign workers to fill important employment needs. Businesses often run into complex issues when trying to hire foreign workers – from issues with unauthorized employment to caps and priority dates. Understanding the various types of employment options available for foreign workers is crucial to formulating the best strategy to hire the best person for opened positions.
One of the most widely used immigration options utilized by U.S. companies to lawfully hire foreign works is the H-1B visa. This non-immigrant visa permits employers in the U.S. to petition for a foreign worker to legally work for the company in the U.S. for up to 6 years. However, H-1B visas are subject to strict requirements and a yearly cap (quota). The attorneys at ilexlaw, PLLC routinely consult with businesses to advise them on the best strategies for H-1B success.
There are two basic requirements:
The overall requirements are pretty straightforward and come down to two main ones: Advanced Degree and Specialty Occupation.
1. Advanced Degree
The foreign employee must posses at least of a bachelor’s degree from an accredited college or university. The degree does NOT have to be from a U.S. college or university but it is important to demonstrate that a foreign degree corresponds to a U.S. degree. For example, a Bachelor in Information Technology from India will in most cases be considered a Bachelor of Science equivalent degree. We use accredited Education Evaluation Services to render such decisions.
There are so many issues that derive from this category. What if a foreign worker has a three-year degree and tons of experience in the occupation. Would that suffice? USCIS will not make a decision but will consult an opinion of a reputable Evaluation Agency. Our law firm uses trusted evaluation services that helped us get approved very tricky cases.
2. Specialty Occupation
The offered employment must be in a specialty occupation. What is a specialty occupation? The answer is in the law. Specialty occupation is the position that requires at least a bachelor’s degree as a minimum requirement. In other words, the duties must be complex that performance of such duties would require a worker to have a Bachelor’s degree. The Department of Labor developed a chart of professional positions that require Bachelor’s and higher degrees. The Department of Homeland Security closely consults with this chart, specifically known as Occupational Outlook Handbook. The Department of Homeland Security will not use common sense or personal opinions. The decision will rely upon the Occupational Outlook Handbook.
Generally these specialty occupations are professional positions. However, any specialty occupation may be able to meet these requirements. Examples of common H-1B occupations are Software Developers, Engineers, Researchers, Medical Professionals, and Teachers.
**The Advanced Degree and Specialty Occupation must be directly related!**
- A Bachelor’s Degree in Engineering would not likely make a foreign worker eligible for an H-1B position in Accounting.
**Employee-employer relationship mush present
- There MUST be a prospective employee- employer relationship for an employer to petition for an H-1B. This is usually accomplished with an official job offer. The staffing agency scenario may cause issues and may not be
The employer must also be able to pay the foreign worker the minimum wage for that particular occupation. Again, the Prevailing Wage is set up by the Department of Labor and is different for every metropolitan area in the US.
How to Apply
An employer interested in filing for an H-1B employee must file Form I-129 with USCIS to petition for the worker.
As a part of the petition with USCIS, the employer must also obtain a Labor Certification Application (LCA) with the Department of Labor. The LCA contains certain certification in compliance with immigration and labor laws. Most importantly, the LCA certifies that the employer will pay the employee at least the “prevailing wage.” This is the wage represents the average wage paid in the area of employment for a similar position. This requirement is designed to ensure that employers are not paying foreign workers less than U.S. workers.
An H-1B may be initially issued for up to 3 years. The H-1B may then be extended first for up to two years and finally for one additional year for a total stay not to exceed 6 years. In certain circumstances if an employer filed for permanent residence for the employee before the start of the employee’s 6th year, he or she may continue to extend H-1B status until a Green Card is available.
Spouses and Children
The lawful spouse and any children under the age of 21 may accompany the H-1B visa holder to the U.S. and will be granted H-4 status. H-4 status also allows spouses and children to study in the U.S.
Recently, USCIS announced that H-4 spouses may be eligible to file for work authorization (EAD). For more information, please visit our PAGE.
Under certain circumstances, an employer may be able to petition for a foreign worker who is already in the U.S. in H-1B status for a different employer. For more information, please visit our BLOG.
H-1B to Permanent Residence
An H-1B visa is considered “dual- intent” meaning that a foreign worker is not prohibited from filing for a permanent residence while in H-1B status. This means that the prospective employee does not have to demonstrate non-immigrant intent in order to receive H-1B status. Based on the background of the employee, there are several different paths to permanent residence that the employer, or even the employee, may pursue. Please contact ilexlaw, PLLC if you or your employee are in H-1B status and ready to pursue permanent residence.
One of the biggest challenges for employers seeking H-1B workers is the H-1B “Cap.” Under current immigration laws, the number of yearly H-1B petitions far exceeds the number of H-1B visas available. In the past few years the H-1B cap has been reached on the first day of yearly availability requiring the use of a “lottery” to determine who may receive this coveted visa. The good news is that may positions and workers may be exempt from this cap. For more information, please visit our BLOG.
How ilexlaw PLLC can help
At ilexlaw, PLLC, the attorneys work with employers and employees everyday to navigate the complexities before, during, and after the H-1B process. We begin each case by developing a strategic plan for each step of the process, form the prevailing wage, to the petition, and ways to combat the H-1B cap. Our experienced team looks forward to hearing from you. Contact us today for your free consultation.
To read more about H-2B visa, Please visit H-2B Visa page.
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