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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