Specialty Occupation Workers And H-1B Visas
Our immigration lawyers at Wilson Law Group in Minneapolis have been helping U.S. based employers and foreign national specialty workers obtain employment-based immigration visas since 2003. We can help employees obtain an H-1B visa, allowing them to live and work in the United States.
What Is An H-1B Visa?
The H-1B visa is one of the most popular of the temporary visas. An employer may apply for an H-1B visa to hire a foreign worker to assume a professional position in a specialty occupation for a business in the United States. There are a limited number of H-1B visas available per year, which is known as the “H-1B Cap.” There are some exceptions to the cap. Since the H-1B is an employer-sponsored visa, the petitioning U.S. employer must have a federal tax identification number. The next step is to prepare and file a Labor Condition Application (LCA). This is different from a Foreign Labor Certification Application. The LCA is an attestation to the U.S. Department of Labor (USDOL) that the employer will pay at least the Prevailing Wage to the H-1B employee and that the hiring of the H-1B alien is not an attempt to disrupt union activity.
Once the USDOL approves the LCA, the employer files the H-1B petition with the U.S. Citizenship and Immigration Services. In support of its petition, the employer must submit various documentation to show the employer’s active status, the position qualifies as a specialty occupation, the employer is offering the position to the foreign national on a temporary basis, and that the foreign national qualifies for the position.
Per federal regulations, a position qualifies as a specialty occupation if the position requires the minimum of a bachelor’s degree or the equivalent in work experience.
What Are The U.S. Employer’s Responsibilities?
An employer’s primary responsibility is to treat the H-1B visa holder in the same manner as its other employees. This includes offering benefits on the same basis and criteria as other employees. An employer becomes responsible for paying an H-1B employee the required Prevailing Wage within 30 days after the date the person enters the United States or 60 days after the individual is eligible to perform his or her job duties. Besides the obligation to treat the H-1B employee equally, an employer must also maintain proper documentation, which includes wage and hour records for all similarly situated employees. The USDOL can request these items as part of its enforcement duties. Finally, if the employer terminates an H-1B employee without cause, the law obligates the employer to pay for the individual’s return abroad.
Does An Applicant Have To Be Outside Of The United States To Receive An H-1B Visa?
No. If the individual is in the United States and holds a valid nonimmigrant visa status, the employer may file a change of status request to H-1B. Most H-1B petitions involving a change of status request will be subject to H-1B cap unless the employer is exempted from the cap.
What Are The Limitations Of H-1B Status?
There are two important limitations. First, the alien may not work for another company; rather, the H-1B work authorization is limited to the sponsoring employer. To work for another company, a prospective employer must file a transfer petition on the alien’s behalf. The second limitation is time. An employer may request up to three years of H-1B validity in each petition, and furthermore, an H-1B beneficiary may remain in the United States for no more than six years while in H-1B status unless there are legal grounds for further extensions. After six years in the United States in this status, the alien must reside abroad for at least one year before receiving H-1B status again. The law permits a foreign national to extend his or her H-1B status beyond the initial six years if he or she is a beneficiary of permanent residency processing. Specifically, H-1B extensions are allowed if a PERM Labor Certification Application is filed 365 days prior to the H-1B expiration or if an I-140 immigrant visa petition has been approved.
Dependents And H-4 Visas
The spouse and children of a person holding an H-1B visa may apply for an H-4 visa. The visa, however, does not permit either the spouse or children to work in the United States. To do so, the person must attain an independent nonimmigrant visa. H-4 depends may attend school in the United States without changing visa status.
Our immigration attorneys at Wilson Law Group help U.S. employers and foreign nationals who wish to work in the United States, obtain the appropriate employment-based visas. As experienced family-based immigration lawyers, we will also help obtain the correct visas for accompanying family members.
Do H-1B Employees Need Social Security Numbers?
An employer cannot pay anyone who does not possess a valid Social Security card. Any H-1B employee must have a valid Social Security card.
Schedule A Free Consultation With An H-1B Visa Attorney
Wilson Law Group has extensive experience helping businesses with H-1B petitions on behalf of prospective foreign national employees. Contact our office by calling 612-430-8022 or sending an email to schedule a free initial consultation with one of our experienced attorneys to discuss your particular matter.