The H1B visa (or simply
called H1 Visa) is a non-immigrant employment
based visa for workers coming to the USA
to perform a "specialty occupation."
Workers from Mexico and Canada can get a
special TN status under the NAFTA treaty.
The H1B status allows foreign workers to
work in the USA for a maximum of six years.
It is granted for three years and can only
be renewed once for an additional three
years. The Information Technology industry
uses this type of visa frequently to fill
vacant positions. Many H1B applicants are
engineers or computer programmers. Quotas
are set every year for the H1B visa by the
government.
INS will not approve an application you
submit because you must have an offer from
an employer and the employer must file the
petition on your behalf. An employer can
be an individual, partnership, or corporation.
Applications are "job specific."
If your situation changes (for example,
you lose your job or change locations),
you must file a new H1B visa petition. The
visa is only valid for work with the employer
that filed the original petition.
In order to qualify for
this type of visa, you must have a four-year
college degree or the equivalent education
and experience. Your employer does not have
to prove that there are no available U.S.
workers for this position. However, the
job offered must require a four-year degree.
You will be denied an H1B visa if you have
a four-year degree but the job does not
require one.
Also, you must prove that
your education is equivalent to the minimum
requirements of a U.S. bachelor's degree.
Sometimes work experience can be substituted
for part of a degree. There are organizations
that specialize in certifying your credentials
for a fee. For example, if your actual education
amounts to only two years of college, but
you have three years of work experience,
the evaluator may determine that your education
and experience add up to a four-year bachelor's
degree.
Spouses and children under
the age of 21 may be eligible to come to
the U.S. for the duration of the H1B's authorized
stay and will be granted H-4 visas. The
H-4 will not allow them to work. Dependents
under the age of 21 are allowed to attend
college and school.
There are several steps
in obtaining an H-1 B Visa:
Prospective employers must obtain a Labor
Condition Application (LCA) and have it
certified by the U.S. Department of Labor
before the H1B petition can be filed.
The prevailing wage and
actual wage must be determined and compared.
The employer is required to pay the higher
of the two. The prevailing wage is determined
by the State Employment Security Agency
by completing a special form, which asks
the employer for the responsibilities, skills
and experience needed for the job. The actual
wage is determined by comparing other workers
in the same positions with the same level
of experience.
Once the prevailing wage
has been determined, then the LCA can be
submitted. This is a two-page form that
contains information about the employer.
By completing and signing the form, the
employer is agreeing to pay the higher of
the two wages, that the employment of this
individual will not adversely affect the
conditions of other workers and that there
is no strike for their occupation at the
workplace. Recently, Congress determined
that employers must attest that they will
offer H1B visa holders the same benefits
as their other workers. This includes health,
life, medical, retirement, stock options
and bonuses.
The form is then mailed
or faxed to the Department of Labor and
they return a certified copy to the employer.
The employer must post
notices at two conspicuous places at their
business of the H1B filing for ten days
or provide notice of the filing to the collective
bargaining representative for their employees.
The LCA form can be used for the actual
posting as well.
After the Department of Labor accepts the
LCA, then the employer can file your H1B
petition. If you are out of the country,
the INS will send notification of your approval
to the U.S. consulate in your country and
you can apply there using the I-129 form.
Be sure to provide supporting documents
in your petition such as the accepted LCA,
educational transcripts, or a letter from
employer describing the position and licenses.
The employer must include the fee for the
petition.
Processing times vary depending
upon service center and the visa. It could
be up to a three to four month wait. If
the employer can show a substantial need
for the employee, INS might approve the
petition sooner. However, employment cannot
begin until INS has issued the appropriate
visa.
If the employee is terminated,
the employer is responsible for the employee's
return trip home.
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