The Immigration and Nationality Act of 1965 and its reform (Immigration Act of 1990) impose limits of 65,000 foreign nationals who can be granted the H-1B Visa or Work Visa for Professionals during each fiscal year.
Some exceptions have made it possible for the number of H-1B Visas issued annually to exceed the 65,000 quota. For example, in fiscal year 2010 USCIS issued 117,828 H-1B Visas and in 2019, according to the Bureau of Consular Affairs, it issued 188,100 new H-1B Visas.
If you are a professional (with a university degree) in a specialized field of knowledge and you intend to work or formalize your status in the US, the H-1B is very useful.
Learn about the H-1B Visa. What is it and what are the requirements? Here you will find details of the procedure and some information of interest.
H-1B Visa: Work Visa for Professionals
The H-1B Professional Work Visa is a temporary or non-immigrant visa that allows a person to enter the United States to temporarily work for a North American employer in a “specialty occupation”.
US employers use the H-1B Visa to hire foreign professionals or people with specialized knowledge for a specified period of 03 years, to work in the US territory, extendable for another 3 years, after which they will have to leave the United States for a period of 1 year before applying again.
Examples of so-called “specialty occupations” can be (8 US Code §1184): Law, architecture, biotechnology, physical sciences, accounting, social communication and journalism, economists, educators, nursing, statistics, physical therapists, computer science, engineering, chemists, physicians, dentists, technical writing, theology, and the arts.
This list is not exclusive since it can be extended to any profession that requires obtaining a bachelor’s degree or its equivalent (with the exception of modeling)
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Requirements to apply for the H-1B Visa
The US Citizenship and Immigration Services (USCIS) indicates the eligibility criteria and requirements to apply for the H-1B Visa:
H-1B Visa – Eligibility Criteria Regarding Occupation
- Qualify as a specialized occupation, that is, demonstrate the theoretical and practical application of a highly specialized set of knowledge.
- Bachelor’s degree or a higher degree in the specific specialty (or its equivalent) as a minimum.
The easiest way to prove that you are a specialized professional is to present a college degree, awarded either in the United States or its equivalent obtained abroad.
H-1B status and provision of professional services
To provide services as a specialized professional within the United States, you must meet the following criteria:
- Bachelor’s degree or equivalent to a higher degree conferred in the USA
- Failing that, a foreign degree equivalent to a bachelor’s degree related to the specialized occupation issued by an accredited foreign university.
- To practice within the United States you will require a license, registration or state certification to fully practice the specialty occupation.
In addition, the visa applicant must demonstrate their specialized training and / or progressively responsible experience, through positions related to the specialty.
In most cases, this condition is covered by the theoretical-practical tests applied by the state governments to grant the professional practice license.
A combination of education plus work experience can demonstrate professional status, which applies to people who did not complete their college education.
Immigration accepts an equivalent of 3 years of experience for each year of university required and in the case of the H-1B, at least 4 years of university are required, therefore, with 12 years of experience this requirement can also be met.
H-1B Visa – Regarding the position
The position or vacancy must be related to the specific competencies of the occupation, showing that the work or tasks to be carried out are so complex or specialized as to be carried out by a professional with a similar degree.
In other words, according to the USCIS:
“The nature of specific duties is so specialized and complex that the knowledge required to perform the duties is generally associated with obtaining a bachelor’s degree or related higher degree.”
H-1B visa – regarding the employer
The employer must qualify as a US employer.
It may be a sole proprietorship, partnership, corporation, contractor or organization in the United States, with an identification number for payment of taxes (EIN or Employer Identification Number), that is, Employer Identification Number.
The contracting entity or employer can be considered American without the majority partner having that nationality. Foreign companies not established in the United States cannot use the H-1B Visa to bring employees to the United States.
The employer must meet certain responsibilities when applying for a professional visa for a foreign employee, in order to protect the wages and working conditions of US workers.
The Department of Labor (DOL) requires the employer to certify compliance with four working conditions:
- The employer will pay the foreign employee a salary equal to the salary of a US worker with similar education and experience.
- The employment of a foreign professional will in no way affect the working conditions of US workers in similar positions.
- That there is no strike or work stoppage at the place of employment.
- That on the date of filing the Labor Condition Application (LCA), a notice has been published with the intention of employing a foreign professional, or a representative of the workers has been informed.
In addition, it is a requirement that the employer develop and maintain a separate file with the documentation that proves compliance with the aforementioned working conditions.
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How is the application process for the H-1B Visa?
In short, according to the Department of Labor (DOL) the process to obtain an H1-B Visa is as follows:
Your employer must file Form 9035 / 9035E (Labor Condition Application – LCA) with the DOL.
In this step, the employer will demonstrate compliance with the requirements for the program, attesting that qualified natives are not available for the vacancy and that the salary conditions offered will be the same as those given for similar positions in the company.
Once the Labor Condition Application has been approved, the hiring company may file Form I-129 (Petition for a non-immigrant worker), before the Immigration Service (USCIS) requesting the H-1B classification for the worker and accompanying the petition with the endorsements and payment of necessary fees. This step can be done through an online portal.
At this point, among the documentation that any employer must present are:
- Legal name of the company
- What does the company do
- The EIN and official address
- The authorized representative or signatory with full name, position and contact information within the company
- Information of the beneficiaries or possible holders of the H-1B Visa
There is a fee to be canceled for each petition filed and each employer can submit up to 250 applications.
For approved applications, there will be a period of 90 days to complete and send the voucher to the workers.
Now the designated immigrant worker will be able to apply for their final H-1B Visa, which will allow them to present themselves at a port of entry into the United States seeking admission and obtain a Form I-94 (Arrival and Departure Record Card) to enter the United States.
H-1B visa for professionals – other information of interest
Once the US Department of Citizenship and Immigration (USCIS) has approved the H1-B Visa, the employee must go to a US consulate located in their home country to obtain their visa. .
If the employee is in the United States with legal status, she can request a change of status to H1-B.
Dependents of a professional with H-1B status, specifically a spouse and children under the age of 21, can obtain an H-4 Visa, which allows them to remain in the United States as long as the H-1B Visa holder retains the legal status of her.
These dependents can attend school, apply for a driver’s license, and open a bank account in the United States.
The H-4 Visa by itself does not allow to work in the United States, except that the spouse requests and approves Form I-765 (Application for employment authorization), a possibility contemplated since the end of 2015.
Many professionals with H1-B Visa obtain their permanent residence during the period of validity of this one, through a different and separate petition.
The procedure required to apply for residency is called Labor Certification. The Immigration Service accepts that a professional with an H1-B Non-Immigrant visa has the dual intention of obtaining permanent residence in the United States.
In fact, no non-immigrant or temporary visa prevents you from opting for permanent residence, they are two totally independent processes and with particular requirements.
Recommended read: USCIS publishes reforms to the EB-5 Visa program.
Work Visa for Professionals – To finish
The H-1B Visa Program for Professionals is probably the best-known temporary employment visa in the US.
And possibly also the most controversial, employers allege that it is too restrictive and unions or labor organizations complain that it displaces American workers, being a scapegoat to reduce their wages, possibly finding a place between these extremes.
The truth is that immigration law is complex, so it is very important that you do not walk this path alone.
Get legal advice from a specialized and competent law firm that will allow you to weigh the different options and immigration facilities that you may have and give you all the support.
At BBA Law Group there is comprehensive advice and support in matters of immigration and nationality. Do you want to schedule a call?