Rudikh & Associates LLC advises and represents individuals and organizations nationwide who are seeking experienced legal help with their H-1B and H-2B visa needs. We are ready to help you with all of your employment visa needs. Contact our office to arrange a consultation to discuss your business immigration needs.
What an H-1B visa can do for you
The U.S. Citizenship and Immigration Services (USCIS) (formerly part of the INS) recognizes that there is a shortage of American workers available to fill specialty occupations at businesses and professional organizations in the United States. Approximately 65,000 H-1B Specialty Occupation visas are available through the USCIS each year. Typically, the visas are granted for the initial three-year period, but may be extended for an additional three years. In addition, if the sponsoring employer is willing to continue sponsoring the specialty worker for a permanent residency in the United States, such employer may file certain documents and forms in order for employee to obtain a permanent residence status and remain in the United States on permanent basis.
Various specialty occupations
There are several occupations that are currently listed by the USCIS as specialty occupations, and additional occupations may be considered on a case-by-case basis:
- Certain healthcare professionals
- Accounting professionals
- Computer analysts
- Database administrators
- Engineers and scientists
- Licensed professionals such as architects and lawyers
Eligibility for H-1B Specialty Worker visa
- Profession must be a “specialty occupation”
- Petition must be submitted by the employer (there are some exceptions to this requirement)
- At a minimum a Bachelor’s Degree is required
- A foreign national not holding a Bachelor’s Degree may qualify for the specialty occupation by having a combination of “education, specialized training, and/or progressively responsible experience” that is “equivalent to completion of a United States Bachelor or higher degree in the specialty occupation, and … recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.”
- The employer must pay the employee the prevailing wage
- The employee meets state licensing requirements if such license is required
Employers may file H-2B visas for their semi-skilled or skilled employees to meet seasonal, intermittent, one-time occurrence or peak time needs. For instance large resorts that cannot meet their staffing needs are eligible to file an H-2B visa to meet their “seasonal” needs. The employer must file a labor certification application with the Department of Labor (DOL) and demonstrate that no qualified worker is able to fulfill the position. Subsequent to meeting this requirement, the employer may file an H-2B petition with the USCIS. Unlike the H-1B visa, the employer may file a blanket petition for their workers. Thus multiple employees may be included in the labor certification and USCIS petition. Since there are only 66,000 visas allotted for the year, it is important that the H-2B petition is filed before the H-2B cap is met. To learn more about the H-2B visa requirements contact our office.
Other business non-immigrant visas
In addition to H-1B visas for specialty occupations, the USCIS also grants business immigration visas for workers who lack the requisite college education, but have recognized experience in the field. Other business immigration visas include, TN visas under NAFTA, and traders visas.
H1-B Frequently Asked Questions
What is an H-1B visa?
The H-1B visa is used by a foreign national who will be employed temporarily in a specialty occupation or as a fashion model of distinguished merit and ability.
Is there a limit on the number of H-1B aliens?
Yes. Under current law, there is an annual limit of 65,000 aliens who may be provided H-1B status or issued a visa. Under the L-1 Visa and H-1B Visa Reform Act of 2004, beginning March 8, 2005, up to 20,000 additional H-1B slots were available to graduates of U.S. Master’s Degree (or higher) programs. There are some types of jobs that are exempt from the H-1B cap. In April 2007, the H-1B cap was reached in one day.
How does one apply?
In an H-1B visa application, the U.S. employer is called the petitioner and the foreign worker is called the beneficiary. After an offer of employment is made, the petition process begins.
The first step is for the petitioner to ensure that the worker will be paid 100% of the prevailing wage paid to similarly employed workers in the geographic area where the beneficiary will be employed. The employer must also be sure not to pay the worker less than the actual wage paid to other employees with similar qualifications.
The prevailing wage can be determined through a private wage survey or through a state Employment Security Agency (ESA). The benefit of relying on a state wage determination is that it cannot be challenged later by the U.S. Department of Labor (DOL). On the other hand, State determinations are not generally a close match to the job performed and are slow in being issued.
Once the wage information has been obtained, a Labor Condition Application (LCA) must be submitted to the DOL. On this form, the employer must submit the prevailing wage, the wage to be paid, and must make certain attestations. We assist employers in submitting this form via the Internet, and the DOL only reviews the form to make sure it is properly completed. It does not look to see whether the information is accurate and instead investigates a small percentage of cases in which violations of the regulations appear to be occurring. (For more information, see the DOL’s Foreign Labor Certification web page at http://atlas.doleta.gov/foreign). The certified LCA application is then submitted to the U.S. Citizenship and Immigration Services (USCIS) as part of the H-1B petition package. Other information that should be included in the petition includes documentation of the foreign national, the petitioner’s type of business and the type of work the beneficiary will be performing.
What are the fees associated with the H-1B visa?
The following government-filing fees apply in H-1B cases.
- The base filing fee for an H-1B case applies in every case. Presently, the fee is $325.
- In late 2004, Congress passed legislation restoring a worker-retraining fee. The previously applicable worker-retraining fee was reinstated and increased to $1500. Employers with fewer than 25 full-time equivalent employees in the U.S. (including employees of affiliates and subsidiaries) pay $750. Previously exempt employers will continue to be exempt from the fee.
- Additionally, there is a $500 fraud prevention and detection fee.
Immigration filing fees change frequently, and you should contact an immigration attorney prior to filing an H-1B visa to ensure that you are in compliance with the most recent regulations and filing fee requirements
Wherever you are in the United States or the world, contact Rudikh & Associates LLC to schedule a consultation about your U.S. immigration law issues.