The United States non-immigrant visas are available for individuals wishing to temporarily relocate to the U.S for work, education, or even leisure. They include people with special skills in fields requiring highly specialized knowledge and unique abilities related to the Department of Defense. They may consist of healthcare workers, accountants, engineers, researchers, fashion models, and university professors. The immigration law categorizes these people under H-1B. The law expects them to apply for an H-1B visa to relocate and work in the United States.
If you are among those that need to enter the United States under the H-1B category, you should be familiar with the visa eligibility criteria, the application process, labor conditions, and the length of time you can stay in the U.S. Therefore, you might need the help of an experienced immigration attorney. Get in touch with the California Immigration Attorney team and let us help you through the legal processes.
Overview of the United States H-1B Program
H-1B Program relates to employers who wish to hire non-immigrants as employees in specialty occupations and fashion models with excellent ability and merit. Specialty occupations here refer to professions that require applying a set of highly specialized skills, and a bachelor’s degree or its equivalent as a minimum qualification. This program’s need is to help employers in the United States who cannot find the required business abilities and skills from the country‘s workforce to offer temporary employment to qualified persons from other countries who lack the authorization to live and work in the U.S.
However, there are laws in place that set standards that ensure that workers with the required skills are not affected by the employment of non-immigrants. Some rules are also in place to protect H-1B non-immigrant workers against discrimination and other issues that could arise from their presence in the United States.
Before bringing in workers from out of the country, employers seeking specialized skills and abilities must demonstrate to the U.S Department of Labor that they can pay the H-1B workers a relatively equal salary to the one received by workers with similar qualifications and experience in the United States. The non-immigrant worker’s wages must also correspond to the prevailing wage requirements for that same occupation in the state from where the workers will be deployed. Employers must also demonstrate their ability to provide the right working conditions for non-immigrant workers, just like those enjoyed by U.S residents.
Who is an Eligible H-1B Worker?
As mentioned above, H-1B workers are a particular class of non-immigrant employees who come to the United States to offer services in specialty occupations, Services requiring exceptional ability and merit, and those related to the Department of Defense development project, or co-operative research. They could also include workers offering services as fashion models with outstanding ability and merit. If you are coming to the United States as an H-1B worker, you must meet one of the following criteria:
H-1B Specialty Occupation
The general requirements here include an individual who can:
- Practically and theoretically apply a set of specialized skills and knowledge.
- One that has already attained a bachelor’s degree or a similar education qualification in the exact specialty. This qualification must be the minimum entry for that specific job in the U.S.
The position which the worker is aspiring to take in the U.S must meet at least one criterion below to meet the requirements of a specialty job:
- It requires a bachelor’s/higher degree and an equivalent to the least admission requirement for that specific position.
- The education qualification above is standard across the sector in similar positions among comparable organizations.
- The occupation is unique or complex and can only be taken by a person with a degree qualification.
- The employer only wants a degree-holder or a person with an equivalent qualification for that particular job.
- The intricacies of the job and duties the worker will be assigned are complex and specialized, and only a person with a degree qualification can handle them.
For you (a non-immigrant worker) to be eligible to take up a position under a specialty job category, you should meet the criteria below:
- Have a bachelor’s degree or a higher qualification essential for the occupation from a recognized university or college in the United States
- Have a foreign degree, which is equal to a United States degree or a higher qualification that is essential for the specialty job from a recognized university or college
- Have an unrestricted state registration, certification, or license that allows you to practice in the field area with no limitations, and receive immediate engagement in that field in a state you wish to work
- Be educated, trained specially, or have progressive experience equal to having a United States bachelor’s /higher degree qualification in the field. You must also be a recognized proficiency in the subject area through positions you have held progressively in the past correlated to the field.
Labor Condition Requirements
Labor conditions apply for those applying for an H-1B Specialty Occupation. The prospective applicant must fill in Form ETA-9035/9035E, the Labor Condition Application form issued by the U.S Department of Labor. The form should be accompanied by Form I-129, which is the application for a non-immigrant worker to enter the United States.
H-1B DOD Researchers & Development Project Workers
Under this category, the general requirement is for the applicant to hold a bachelor’s/higher degree or equivalent. The application must include the following:
- A confirmation letter from your project manager at the DOD for that particular project you will be undertaking in the United States. The letter must state that you’ll be engaged in a development project and cooperative research or be undertaking a co-production project through a Government-to-Government treaty administered by the Department of Defense.
- A detailed explanation of the duties that your employer will assign you on the project you’ll be undertaking, plus the exact dates you’ll be employed to work on the task.
- A statement providing the identities of other non-immigrant workers that’ll be employed to work in the same job in the country and the date they were engaged. Names of other non-immigrants whose job on that particular project completed within the previous year will also be required.
For you to qualify to apply through this category, you must be a holder of a baccalaureate/ higher degree or an equivalent qualification in the work-related area where you’ll be offering the services. The requirement must at least fall under any of these categories:
- You must be a holder of a United States bachelor’s/higher degree in a qualification that is required by your duties. The degree must be from a recognized university or
- You must be a holder of a foreign degree or an equivalent qualification to a United States bachelor’s degree or higher from a recognized university or
- You must be a holder of unrestricted state registration, certification, or license, which fully permits you to handle that particular job’s tasks. You should also be instantly engaged in the field in the same state you intend to work once in the U.S.
- You must be educated, specialized trained, or have progressively responsible knowledge in that particular specialty of your interest. These qualifications must match the completion of a United States bachelor ’s/higher Additionally, your expertise must be recognized in the field through continuously responsible positions you have held in the past related to that particular specialty.
For this particular category, applicants won’t be required to meet any Department of Labor conditions when applying for the job.
H-1B Fashion Models
The general requirement under this category is for the applicant to be a prominent fashion model. You must prove to be an exceptional fashion model of excellent ability and merit to obtain an H-1B visa.
You must also meet the specific Department of Labor requirements such as the inclusion of Form ETA-9035/9035E in your application, which is the Labor Condition Application licensed by the Department. The application should be accompanied by Form 1-129.
H-1B Registration Procedure
On December 6, 2019, USCIS announced implementing an online application process for H-1B applications. Applicants whose petitions will be accepted will have registered electronically and paid the associated registration fee. Electronic registrations simplify the process by reducing data exchange and paperwork. They will also save money for employers seeking to file H-1B petitions.
In this new process, applicants/petitioners/registrants will be employers who are seeking authorization to hire H-1B workers as provided by law. These, together with their authorized representatives, will be required to complete an online registration process. The registration will include providing essential information regarding the prospective petitioner and every requested worker.
USCIS will then conduct a selection process from the electronic registrations that have been correctly submitted. Only potential employers whose electronic registrations have been selected will be required to file petitions under the H-1B cap.
Once registrants have submitted their online registrations, USCIS will notify them and their representatives through their USCIS accounts. An applicant’s account will show one of the following statuses for every registration submitted:
- Submitted — Registration statuses will show ‘submitted’ after the completion of the initial selection process. Registrations still showing ‘submitted’ are considered for selection until the end of the financial year. In the end, they could be selected, not selected, or denied.
- Not Selected — This status is given to those applications that won’t be selected for that particular fiscal year. Note that registration won’t bear a ‘not selected’ status until the end of that fiscal year. Registration status may continue pending as USCIS determines whether it needs to increase the number of applications projected to have met the registration criteria. If there is a need to add more, USCIS will pick on those registrations that have met the requirements but have been reserved. If not, they will be denied.
- Denied — This is the status of those applications that have not been selected for that particular fiscal year. Your application could be rejected if you or your representative submitted more than one application for one beneficiary in the same year. If that is what happened, then all the registrations for that particular beneficiary will be invalid and denied.
Filing the Petition
The process only applies to specialty occupations and fashion models petitions.
The first step would be for the employer or his/her agent to submit a Labor Condition Application to the U.S Department of labor for certification. Even if the application is the employer’s responsibility, employees might benefit from understanding the program being used on their behalf. The application is issued to ensure that admitting foreign workers into the country does not adversely affect job opportunities, salaries, and working conditions for workers in the country. Once DOL issues the application, the employer will have to seek the authorization of USCIS to bring employees from foreign countries.
The second step is in the employer or his/her agent submitting a completed Form 1-129 to USCIS. It is a petition for non-immigrant workers, submitted to the USCIS service center. This, too, is only required for specialty occupations and exceptional fashion models.
The third step would be for prospective employees out of the U.S to apply for a non-immigrant visa and seek admission into the U.S. This process will only happen if the petition filed above has been accepted. You will apply for a visa with the Department of State at a Consulate or Embassy in your country. Note that there are countries where a permit is not required to come to the U.S. Prospective employees in those countries will not need to apply for one. In addition to a visa, employees will be required to apply to the U.S Customs and Border Protection seeking admission into the country under the B-1B category.
Labor Condition Applications
The application will include specific confirmations that should not be violated by the employer or his/her agent. If they violate any of those attestations, there will be consequences, including fines and being barred from sponsoring immigrant and non-immigrant petitions.
The labor conditions applications require the employer and/or his agent to comply with these labor requirements:
- That they will give the H-1B employee a salary that doesn’t go below the wages paid to employees with similar qualifications. They could also agree to pay the standard wage requirements for that particular job in the state where the employee will be stationed.
- That they will provide excellent working conditions for the non-immigrant worker that won’t adversely impact other employees
- That the time of labor conditions application must not coincide with a lockout or strike at the employment place
- That notification of the application for the labor conditions with the U.S DOL must be issued to the labor union representing the employee or displayed at their workplace.
Before the DOL can certify an employer’s Labor Condition Application, he/she must go through specific procedures. The first and most important is obtaining the prevailing wage, which ensures that the non-immigrant worker won’t be underpaid than citizens offering the same services in the same workplace.
The second procedure will be for the employer to file Form ETA 9035 with the Department of Labor to submit the application of labor conditions. Note that the submission for the application must be made electronically through the Foreign Labor Application Gateway system. The requirement is for the employer to submit the form not later than six months from the beginning of the supposed employment period.
H-1B Visa Application
The prospective H-1B employee must handle the Visa application. Just like other registrations under this category, USCIS requires visa applicants to complete their application process online. However, the employee must first connect with a sponsor. It could be an employer or company offering the position for which you are coming to fill.
Applicants already living in the United States on an F1 visa can first determine whether their employers are willing to sponsor them on an H-1B visa. Those on an L-1 visa or any other status could connect with an experienced immigration attorney to determine their options.
Their current or prospective employers can sponsor H-1B applicants. What is needed is an agreement between the employer and employee that the employer is willing to fund the process. Once there is an agreement, your sponsor can file the petition (as discussed above) on your behalf. Employers must undergo the application process to ensure that foreign job applicants meet the eligibility requirements for the positions they are seeking.
The H-1B Cap refers to a numerical limit placed on the number of foreign employees allowed to temporarily relocate and work in the U.S annually under the H-1B status. The limit was created under the 1990 Immigration Act. It is meant to enable hiring non-immigrant visa holders by employers in the United States who cannot find the same level of skills and experience in the country.
H-1B category of non-immigrants is currently only allowed a yearly numerical limit of 65,000 new visas every fiscal year. On top of that number, the U.S Immigration Department receives 20,000 requests filed by employers for beneficiaries who are holders of a Master’s degree or higher qualification from a university or college in the country. These are exempted from this cap. Other non-immigrant employees exempted from the numerical cap are those who appeal for or work for higher learning institutions or their related or affiliated non-profit entities, government, or non-profit research organizations.
How does USCIS determine whether a particular petition is subject to the H-1B cap? The USCIS relies on employers’ information during the electronic registration to decide where to categorize a specific petition. The beneficiaries of a master’s degree or higher from the United States will remain exempted from the cap until the number of beneficiaries under their category exceeds the 20,000 limits.
The Length of Stay for H-1B Employees
Your length of stay in the United States is essential, and so will be predetermined before your arrival. Generally, specialty occupation workers and fashion models admitted into the U.S under the H-1B category are given three years. This period could be expanded but cannot go beyond a total of six years.
The law requires your employer to pay all reasonable costs regarding your return transportation if he/she terminates your employment before the end of the period you are authorized to stay in the United States. However, if you voluntarily resign from your job, your employer is not responsible for your transportation expenses back to your country.
Remember that you can change your visa status anytime. H-1B visa holders are eligible to apply for permanent residency in the United States by applying for a green card. You may experience difficulties in applying for a green card once your non-immigrant visa expires.
How About Their Close Family Members?
The law allows your unmarried children below 21 years old and spouse to seek admission into the United States to join you on your temporary stay. They will also seek admission by applying for an H-4 visa. From May 2015, holders of H-4 visas, who are dependents of holders of H-1B visas, are allowed to apply for employment permits in the United States by filing Form 1-765. However, this will apply only if the principal beneficiary has already begun the processes of looking for employment-based legal citizen status.
Find a Los Angeles Immigration Attorney Near Me
If you have received an invitation to work under the H-1B status in the United States, there is a lot of information you must know before applying for the respective visa. An experienced immigration attorney can help you understand all the legal processes involved, help you through these processes, and improve your chances of migrating to the United States. At California Immigration Attorney, we have the skills, experience, and resources in place to help you through the process. Call us at 424-789-8809 today, and let us take the burden off your shoulders.