The United States H-1B Visa

The H-1B visa might be one of the most well-known visas offered by the United States. It has received a lot of media attention lately, largely from politicians and business professionals discussing the need for allowing highly skilled workers into the United States and immigration attorney’s securing these legal documents. Alleged problems of the H-1B visa process have also made the news. But what makes the H-1B visa so special?

• New York Immigration Lawyers: From Visas to Green Cards and Naturalization

The H-1B is a nonimmigrant type of visa that allows US companies to hire temporary foreign workers for “specialty positions.” The H-1B visa was intended to provide domestic employers with a way of getting skilled workers they wouldn’t otherwise be able to hire from the current US population.

Because the H-1B visa provides a way for US companies to bring in foreign workers, it is the employer (petitioner) that technically applies for the H-1B visa, not the individual (also known as the beneficiary). The H-1B visa isn’t available to just anyone. In order to get the H-1B visa, special requirements must be met.

There are four primary requirements for obtaining an H-1B visa. The beneficiary must:

1. Have a bachelor’s degree or the non-US equivalent of a bachelor’s degree. Three years of work experience can replace one year of schooling, so beneficiaries may meet the bachelor’s degree requirement with a mixture of schooling and work experience. Another way to meet this requirement without having a bachelor’s degree is to have a license or certification which allows the beneficiary to work in the specialty occupation.

2. Be planning to work in a “specialty occupation.” This means the beneficiary will work in a field that normally requires a bachelor’s degree (or higher) in the relevant field.

3. Earn a wage. Earning a wage refers to the requirement that the job the beneficiary will take on pays at least the prevailing or actual wage for the specialty occupation.

4. Have an employer-employee relationship with the employer/petitioner who will be applying for the H-1B visa.

There is no set time period for the H-1B petition process, but it can easily exceed six months from getting the prevailing wage determination to receiving the H-1B visa decision from the U.S. Citizenship and Immigration Services (USCIS).

The first step to getting an H-1B visa is to find a sponsor, i.e. an employer who will hire the beneficiary to work for them in the United States. If the beneficiary doesn’t have a job offer in hand, he or she won’t be eligible for the H-1B visa.

The second step is to submit a Labor Conditions Application (LCA) with the US Department of Labor. This will be filed by the petitioner. It basically promises that the petitioner will meet the labor requirements of the position, such as paying at least the prevailing wage.

Step three involves the submission of the H-1B petition to the appropriate USCIS service center. The petition will consist of many documents, including Form I-129, an approved LCA, evidence of educational background, evidence of relevant certifications or licenses and evidence of work experience.

Several fees are also required, with some of them not applying in every situation. Most H-1B petitions have the following fees:

• Base fee of $325
• American Competitiveness and Workforce Improvement Act of 1998 fee of either $750 or $1,500, depending on the size of the petitioner
• Fraud and detection fee of $500, which is only needed for the initial H-1B petition or when switching employers.

There is also a Premium Processing Service fee of $1,225, which is optional, but will allow for faster USCIS processing.

The H-1B “season” begins on or around April 1 of each year. This is when the USCIS starts accepting H1-B petitions. There is also a cap of 65,000 H-B1 visas granted every year. Due to the increasing demand for H-1B visas, this cap is reached very quickly.

The USCIS is required to accept H-1B petitions for a set period of time, which is often five business days. This means the effective H-1B petition deadline is on or around April 6. Over the last few years, the cap has been reached before the end of the five business day petition acceptance window. This means the USCIS has more H-1B petitions than H-1B visas. As a result, a “lottery” is usually held where the USCIS will randomly selection 65,000 petitions, process them, then grant the H-1B visas.

For those with a master’s degree, there’s an additional 20,000 H-1B visas available under the advanced degree exemption. As an additional benefit, a beneficiary who has a bachelor’s and master’s degree has two opportunities to have their H-1B petition drawn in the lottery.

There are some exemptions to the 65,000 cap. For example, beneficiaries who will be working for universities and non-profit research facilities are not subject to the cap.

H-1B visa holders are allowed to work in the United States for three years, although an extension of another three years may be obtained. However, if the H-1B visa holder is fired or resigns from his or her specialty occupation before the H-1B expires, the H-1B visa will be revoked.

For workers who would like to stay in the United States after their H-1B visa expires or is revoked, they will need to get another visa, apply for a different H-1B extension or risk removal and deportation.

Outside of the immediate consequences of an arrest to employment, when an accused also holds a visa such as an H-1B, the collateral impacts can be catastrophic including the revocation of a visa, loss of employment and an inability to either renew a visa or remain in the United States in good standing. Because different crimes and convictions can have varying impacts on the legal status of an H-1B holder or applicant from Crimes Involving Moral Turpitude and Aggravated Felonies to lesser, yet quite serious offenses, it is imperative to not only secure a knowledgeable immigration lawyer, but a criminal defense attorney who has the experience to minimize your criminal exposure to both prevent incarceration and a criminal record which in turn will then provide you a greater opportunity to maintain or secure an H-1B visa.

• New York State Criminal Defense
• Federal Criminal Defense
• Immigration Consequences: From Arrest to Criminal Conviction

Remember, failure to properly manage your immigration and criminal issues will no doubt devastate you and your family.

An H-1B visa can serve as a first step toward permanent residency. For instance, one way to get a Green Card is to get employer to sponsor it. Often an employer will sponsor a worker for his or her Green Card because that worker is already an H-1B visa holder working for that employer. Seize the opportunity should it prevent itself and retain the right counsel to move your life forward.

Call the New York immigration lawyers and former New York City prosecutors at (212) 312-7129 or contact us online today.