H-1B and Non-Immigrant Work Visas

Introduction to Employment in the U.S. for Foreign Workers in “Specialty Occupations”

By Carol Amoruso, IMDiversity

Posted: August 4, 2010

If you have foreign citizenship, are highly skilled in a “specialized occupation” normally requiring a bachelor’s degree or higher, and would like to work in the U.S., you’d be applying for one of up to 65,000 job opportunities for foreign workers under the United States Citizenship and Immigration Services’ (USCIS) H-1B visa program. The category allows for an additional 20,000 positions per year for visiting workers with advanced degrees–masters and above–thus setting an ultimate cap of 85,000.

The majority of positions for the upcoming year, beginning on October 1, 2010, have not been filled. The USCIS reported on July 23 that since the date applications could first be filed, April 7, 2010, petitions for 26,000 workers had so far been approved along with 11,300 for advance degree workers. This means that nearly 48,000 visas are still open to be granted until September 30, 2011. The number of applicants varies from year to year, depending mostly on the state of the U.S. economy. In other years, there has been an overflow. You can check with the USCIS website for an accounting of the number of visas issued for the year to date.

With a potential applicant in mind, IMDiversity has put together an introduction to H-1B visas, hoping to provide enough information to allow a worker to make the right personal decision whether or not to apply, and offer a head start for those ready to embark on the process. As with all bureaucracies, the process is not straightforward, but we aim to make that process a bit clearer and provide a helpful starting point. Please note, however: It is not the worker who petitions for entry, even though he/she may feel confident a job is waiting for them. The impetus must come from the employer, and the applicant must be petitioned by name. Once the applicant is approved, the visa holder must accept the terms of the petitioning employer.

What is the H-1B visa and how is it awarded?

H-1B visas allow visiting foreign nationals the right to work in the U.S. in “specialty occupations.” (See below, under “Requirements” for a partial list of specialty occupations.) By and large, the great bulk of H-1B visas is awarded in the field of information technology, although hires in educational institutions are also well-represented.

If granted the H-1B visa, the length of stay permitted is 6 years–an initial 3 years plus a 3-year extension—with nonimmigrant status. After that time, the job-holder would have to return to the country of origin unless he or she has filed for permanent residence (“green card”). Under dual intent, H-1B and certain other visa holders may file for permanent status while residing and working in the States. If the worker has not filed for permanent residency, he/she must return to the country of origin and begin the process of applying again from the start.

Visas are issued throughout a yearly cycle that begins on October 1. Applications for the upcoming cycle are accepted beginning on April 1 — six months before the cycle’s start. If the quota hasn’t been filled by October 1, applications will continue to be considered until the end of that year’s cycle (Sept. 30).

What are the requirements for application?

The “beneficiary” (the term used by the USCIS for workers granted U.S. visas) must have a bachelor’s degree and be able to demonstrate “theoretical and practical application” of skills in one of the following occupations, but not exclusively: “architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.” As previously mentioned, the majority of H-1B workers are placed in jobs in the technology field.

The applicant must also be able to speak and read English and be prepared to submit to a thorough background check for security reasons.

What are the employer’s responsibilities?

The employer, in petitioning for the worker, must electronically submit to the Department of Labor a Labor Condition Application (LCA – Form ETA 9035). The approval or denial comes within minutes, also electronically, according to the Department of Labor. Once the LCA is approved the employer files the Petition for a Nonimmigrant Worker (Form I-129) with the USCIS, requesting the foreign worker. The employer must agree to pay the foreign worker a “prevailing wage,” or one that approximates the current average for the industry.

(Those entities that have received economic stimulus monies from the Troubled Assets Relief Program [TARP] must submit additional relevant information: They must attest to having attempted to recruit a U.S. worker first, and that they are not depriving an American of the job being offered the foreign worker.)

What are the basic steps involved in applying?

As stated, a worker must first be “petitioned” by his/her prospective employer who begins the process by filing an LCA, which alerts the Department of Labor to the hirer, its plant, labor practices, etc. Once the employer’s LCA is approved, he/she will receive a Receipt Notice of Action, indicating the case is under consideration. Then, the employer will need to file with the USCIS a petition, along with supporting documents (such as a university diploma), requesting that worker by name. If all is in order, an Approval Notice of Action, indicating that the petition has been granted, will be issued and the new visa-holder may now begin working.

What is consular processing?

Some applicants will have to be interviewed in person before their visa is approved. Mostly these will be applicants residing outside the U.S. and from a country that does not have an agreement with the U.S. exempting its citizens from the process. On occasion an applicant in the U.S. while filing for H-1B will have to undergo consular processing.

How much does filing cost and how long does the process take?

There are two ways to file depending on how speedily the employer and worker need the application process to advance. With regular filing (Form I-129), there is a fee of $320, which is paid by the worker and takes up to 3 months to process. If there is urgency to fill the position, the sponsoring employer can use the Premium Processing Service (Form I-907) and pay an additional $1000. Unless there are serious outstanding issues of documentation, etc., Premium Processing takes 15 calendar days. (If other validating forms need to be filed, most will require fees. See below for links to various forms.)

Generally, from start to finish, regular filing takes under 6 months.

Should I hire a lawyer?

All non-governmental parties we queried suggest strongly that the applying worker hire an immigration lawyer to navigate the system and handle the bulk of paperwork that needs to be submitted. They agreed that the USCIS can prove a stickler for procedures unfamiliar to foreign workers and may deny a petition on a seemingly inconsequential detail. IMDiversity.com shares this opinion.

The USCIS, on the other hand, said that a lawyer is not mandatory because their agents are available on-line, by phone, or on-site (see below for contact information) should an applicant need assistance.

The applicant must take care, in choosing a lawyer, to make sure he/she is well respected in their field and investigated beforehand. Lately in the U.S., many people professing to be experienced, successful immigration lawyers are nothing of the sort and are either less than expert or fraudulent.

What are other useful details?

If a visa holder wishes to bring in to the U.S. a spouse and/or child(ren), they must apply for an H-4 visa, which would allow family members to attend school, but not work.

Changing employers once the work has commenced is permitted, but requires a number of additional steps.

The cap of 65,000 plus 20,000 has been consistent for a number of years, but it can and does change. In fact, some proposals now being debated under eventual immigration reform consider raising the H-1B numbers.

On rare occasions, the H-1B visa can be extended beyond 6 years. If it is not, and the worker wants to remain in his/her job without seeking permanent residence, he/she must leave the country for a year. After that time they must begin the filing process once again.

If the H-1B visa holder feels his/her rights have been violated under U.S. labor laws, they may consult with and/or file a complaint with the U.S. Dept. of Labor’s Wage and Hour Division. This government body will do all it can to assure confidentiality and fairness.

What are the H-1B2, H-1B3 and other nonimmigrant visas?

The H-1B2 Specialty Occupations, DOD Cooperative Research and Development Project Visa is issued to foreign nationals coming to the U.S. to work on a specified project with the Department of Defense. These visas are good for 10 years and can be renewed for another 5.

The H-1B3 visa designates a special subgroup of “fashion models of distinguished merit and ability.” A bachelor’s degree or higher is not required.

Other temporary work visas include those for Mexicans and Canadians under NAFTA (TN) and for citizens of Chile and Singapore (HB-1) under a free trade agreement with the U.S.. See the USCIS web site for information. Australia also has a special agreement (E-3) with the U.S. in which “specialty occupation professionals” can work here for an initial period of 2 years with unlimited additional extensions of 2 years each.

Foreign entrepreneurs willing to invest $1 million ($500,000 if the investment is in a “targeted employment area”) and will create a minimum of 10 jobs for U.S. workers can file for the EB-5 visa.

Important Update:

(18th Aug. 2010): Senator Charles Schumer pushed through this week an emergency bill with a projected budget of $600 million to secure the Mexican – US border. A provision in the bill raising the H 1-B visa fee to $2000 or more for those employers with more than 50 H 1-B visa workers in their employ would provide a projected $200 million to $250 million in revenue to support the surge. The majority of these employers are subsidiaries of Indian firms who hire South Asian H-1B workers. Senator Schumer specifically mentioned these firms: Wipro, Tata, Infosys and Satyam.

November, 2010 Update

New Fees for petitioning an H-1B worker:

As of 14 August, 2010, fees for H-1B applications have been raised by $2000 per worker petitioned.  The additional funds collected will be earmarked to increase security along the U.S. –Mexican border.  Affected are those companies employing over 50% H-1B workers.  Senator from New York, Charles Schumer, a co-sponsor of the bill, said that, in addition to shoring up the border, he hoped passage would “create some vacancies for Americans.”

Visa Cap

Here is an update on the number of visas still outstanding for 2010/2011 as of the 5^th November:

Of regular H-1B, the cap is 65,000 with 46,8000 petitions available to be granted.

Of the H-1B visas reserved for those petitioners with a master’s degree, the cap is 20,000, with 17,200 petitions available to be granted.

To keep up-to-date on the caps, see:

H-1B Fiscal Year 2011 Cap Season