LAW OFFICES OF BARBARA-ANN WILLIAMS, PC

A very popular work visa option is the H-1B or Specialty Occupation visa. The H-1B allows skilled foreign workers to come to the United States to work for a US company. A US Company can employ a foreign worker in H1B status for an initial period of three years. Upon a showing that the need for the employee’s services is continuing but still temporary, the H1B may be extended for an additional three years.  The H-1B is usually the initial step foreign workers take toward an employment based (EB3) green card.

There are several important requirements which both the employer and foreign worker must meet before USCIS will grant an H-1B petition. They are as follows:

• The position must require a four-year U.S. Bachelor’s degree or higher as is customary for such a position according to the Occupational Outlook Handbook;
• The foreign worker must have such a four- year degree or foreign equivalent; and,
• The employer must pay the foreign worker the prevailing wage.

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FOUR YEAR DEGREE REQUIREMENT

Either the position must require a four year degree or entail duties which are so complex that the knowledge required to perform the job is usually associated with the attainment of a U.S. four year degree or equivalent in the field of employment. If the employee possesses a foreign degree, a degree evaluation is strongly advised to demonstrate the equivalence to a U.S. college degree.
To determine the complexity of the position or whether normal industry standards require a 4 year degree for the position, USCIS relies heavily on the Occupational Outlook Handbook, a reference source published by the Department of Labor. This handbook helps professionals and USCIS alike to determine the normal educational and skill level required for a number of different jobs in the U.S.

WORKER QUALIFICATION

Of paramount importance is whether the worker has the U.S. 4 year degree or equivalent in the required field. Proof of the degree should be demonstrated by original school transcripts, a copy of the degree and all diplomas, certificates and licensures conferred. The degree must be in the field for which the job is being offered. This means, if the position is for an architect, you should have a B.S. degree in Architecture or equivalent.

THE EMPLOYER MUST PAY THE EMPLOYEE THE PREVAILING WAGE

Foreign workers must be paid 100% of the prevailing wage for the position. The prevailing wage is usually determined by providing the State’s Employment Development Department with a detailed job description of the position and all minimum requirements. In the alternative, USCIS allows an employer to use private salary surveys for the industry to determine a wage but they are not immune to challenge.
 
A certified Labor Condition Application is also required to be filed with the Petition which attest the employer will pay at least the prevailing wage, that there are no strikes or lock outs and that if the position is a union position, that a collective bargaining unit has been notified that the position is being offered to a foreign employee. AC21 further requires additional attestations by the employer that they are not otherwise dependent upon H1B workers and the H1B workers are not being benched (not working while in H1B status).

If these minimum requirements are met, then H-1B status is usually accorded to the employee. If the employee is outside of the U.S. than he or she must apply to a U.S. consulate for an H1-B visa to enter the U.S. to begin working. If already in the U.S., then when submitting the H-1B Petition, the employee may simultaneously request a change of status to an H-1B. However, for a request of a change of status to be granted, the foreign employee must currently be in another lawful status (i.e. B tourist, F-1 student, etc.). Otherwise the change may be denied and the employee will have to return home to process for a new visa to re-enter the U.S.

FILING FEES

At the time of writing, as with all applications directed to the US Immigration Service, there are filing fees involved. The basic filing fee at the time of writing is $190.00 for first time and H1B extensions. For employers with 25 full time employees or less, an additional $750.00 fee plus a $500.00 fraud prevention fee is required; For companies with 26 or more full-time employees, an additional $1500.00 plus the $500.00 fraud prevention fee is required with the $190.00 base fee. Filing fees should be paid by company check. Additionally, the fraud prevention fee must be paid by a separate company check.

H1B VISA CAP

Each year, only 65,000 H1B visas are made available. There are no more visas left in this category for FY2007. This means that the next available date a new H1B worker may begin working in the United States is October 1, 2007. H1B Petitions will again be accepted as early as April 1, 2007, for a start date of October 1, 2007. Employers seeking to employ a foreign worker in H1B category must begin to think about starting the process early. As only a limited number of visas are made available each year in this category, once an employer has decided to employ an alien in H1B status, they process should begin immediately.

7TH YEAR EXTENSIONS

H1B status can be extended beyond the 6th year in 1 year increments pursuant to the American Competitiveness in the Twenty-first Century Act (AC21) if either a labor certification or I-140 Petition filed on the worker’s behalf has been pending for at least 365 days. For workers from certain countries whose visa numbers are oversubscribed, the H-1B may be extended in 3 year increments upon approval of the I-140 Petition.  AC21 allows certain aliens greater flexibility to "port" to another employer under certain circumstances as well as clarifies when an employee may "safely" change employers during the labor certification process.  To find out if you are eligible for portability under AC21, contact us.    Schedule a Case Evaluation now.