The H1B visa is a non-immigrant visa that enables U.S. companies to employ foreign specialists for up to six years. It is designed for highly skilled employees who will work in specialties requiring deep “theoretical and practical knowledge” in a specific field. To be eligible for an H1B visa, the job must necessitate a college level of education, typically a bachelor’s degree, or extensive work experience in the field.
To qualify for an H1B, the salary offered must be equal or exceed the prevailing wage for similar occupations in the region. It is crucial to prove that your employer is capable of paying the proposed salary, as this is a key requirement. Additionally, the employer must submit a Labor Condition Application with the U.S. Department of Labor and make a written commitment not to discriminate against American workers by hiring a foreign specialist.
H1B visa holders are not permitted to work for any employer other than the one specified in their visa application. Should you change jobs, your new employer will need to file a new application on your behalf.
Part-Time Work
If you apply for an H1B visa with reduced work hours (such as 20 hours per week), you are only allowed to work the number of hours stated in your application. To change your work hours from part-time to full-time (40 hours per week), a new Form I-129 and the associated fee must be submitted to U.S.C.I.S.
Travel Outside the U.S.
Once you obtain H1B status, you can legally work and live in the U.S. However, traveling outside of America can pose issues. If you leave the U.S., you will need to obtain an H1 visa from a U.S. diplomatic mission to return. Although having H1B status is likely to positively influence the attitude of American consular officers, you will need to provide a comprehensive package of documents, including additional materials. There have been instances where consular officers have denied visas to individuals already working in the U.S. under H1B status.
If your employer falls under U.S.C.I.S.’s definition of a company heavily reliant on H1B visa employees, there are three additional aspects that need to be proven:
1. Definition of H1B Dependence: A company is considered H1B dependent if it has 25 employees with 8 being H1B workers, or up to 50 employees with 13 H1B workers. If the company has more than 50 employees and 15% are on H1B visas, the Immigration Service will classify your employer as an “H1B-dependent” company.
2. Requirements for H1B-Dependent Employers: Employers dependent on H1B workers must certify that they have not terminated, and do not plan to terminate, similarly qualified U.S. citizen workers in the 90 days before and after the H1B application submission. Additionally, the Immigration Service needs assurance that the employer will not send the H1B employee to work at another employer’s site unless certain conditions are met. This includes ensuring that the co-employer has not terminated or intends to discharge similarly qualified U.S. citizen workers within the same 90-day timeframe. Furthermore, it is important to confirm that before hiring a non-U.S. citizen, the employer made efforts to recruit U.S. citizens for the job and guarantees employment to any qualifying American citizen who applies.
3. Payment for Applications: Remember that in the case of H1B status applications, the applicant is the employer, not the individual worker. All payments related to the H1B petition must be made by the employer. If it is discovered that the employees themselves are making the payments, it will be considered an intentional understatement of the wages offered, leading to potential issues with U.S.C.I.S.
Process of Obtaining Permanent Resident Status
In working in the U.S. under H1B status, you’ll initially have a 3-year period of validity for your visa, which can be extended for another 3 years. If you wish to remain in the U.S. and obtain permanent resident status, you’ll need to secure a PERM labor certification. This requires the employer to conduct a substantial recruitment campaign to find potential U.S. citizens who could fill your position. If this campaign does not yield suitable candidates, labor certification is likely to be approved.
After obtaining labor certification, you and your employer must file a Petition for Permanent Resident Status (Forms I-140 and I-485). The employer must also prove the ability to pay the proposed salary from the time of hiring until you attain permanent residency. This process can take several years.
Deadlines for Consideration of Petitions
1. Labor Condition Application (LCA) at the Labor Office: Processing time ranges from 7 to 14 days.
2. Form I-129 to the Immigration Service: The processing time varies significantly. It can be as short as 15 days with additional fees (premium processing) or extend to several years if quotas are exhausted.
3. PERM Certification: The processing time for PERM certification typically ranges from 9 months to 2 years if an audit is required.
4. Submitting Form I-140 to U.S.C.I.S.: The processing time varies based on the Service Center reviewing the form.
5. Submitting Form I-485 to U.S.C.I.S.: The processing time varies by district.
Quotas
It is important to be aware that American laws set specific quotas on the number of visas issued each fiscal year. For the fiscal year 2023, the United States Citizenship and Immigration Services (USCIS) reached the congressionally mandated cap for H-1B visas. The cap includes 65,000 H-1B regular visas and an additional 20,000 under the U.S. advanced degree exemption, also known as the master’s cap.
If you plan to apply for an H1B visa to work for a U.S. company, it is crucial to collect and submit your documents as early as possible. The quota for the new fiscal year typically opens on April 1. For example, for the fiscal year 2024, applications would have begun being accepted on April 1, 2024. The high demand for H1B visas means that the quota is often quickly met, so prompt submission of applications is recommended.
