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• Residency and travel abroad: Avoid losing your residency (Dec. 2011)
• Cancellation of Removal/Deportation, Second Quarter 2011
• Priority Dates Advanced - December 2010
• The "U" Visa, First Quarter 2010
• Conditional Residency Newsletter, Third Quarter 2009
• American Citizenship Newsletter, Second Quarter 2009
• First Quarter 2009 Newsletter (immigration benefits for stepchildren, deportation, waivers, TPS, 245i, criminal charges and immigration)
• Is your Immigration Petition Taking too Long? You may sue the immigration service (USCIS)
• The 2008 U.S Presidential Candidates on National Immigration Reform
• December 2007 Newsletter
• Newsletter Index

Description

An H-1B visa allows a foreign person with at least a bachelor’s degree or its equivalent in work experience to work in the U.S., if the position the foreigner will fill requires such preparation, and the employer agrees to pay the individual the prevailing wage for such a position in the location of employment. The person will be in non-immigrant status (meaning that the person will not be residing permanently in the U.S.). However, the individual may apply for permanent residency thereafter. This is appropriate for someone who has a specialty job offer in the U.S. (requiring a bachelor degree or its equivalent in relevant work ) and wants to start working as soon as possible.

There is currently a premium processing option, which for an additional $1,000 in filing fees, the U.S. Immigration Service will commit to process the application within 15 calendar days from receipt of the application. Processing the application does not mean that there will necessarily be a final decision after 15 days, but rather that there will be a response after this time. This response may be a visa approval, a denial or it may also include a request for additional documentation from the petitioner or the employer. Click here for more information on premium processing.

Who Is Eligible

Foreigners with a bachelor degree, or its equivalent in work experience and specialized skills, are eligible for an H-1B visa (their dependents are eligible for an H-4 visa). To apply for this visa you must have the following requirements:

• A job offer in the U.S. with a company willing to sponsor you
• A salary and working conditions that matches what others are making in the same field in the area where you will be working
• A bachelor degree or experience in the field of employment equivalent to a bachelor degree; or
• Relevant work experience to the position offered

Visa Duration

H-1B visas last for 3 years.

Renewability

Can be renewed or transferred repeatedly, for a total of 6 years of validity. The visa holder may also apply for a permanent residency soon after applying for the H-1 (as a dual intent applicant).

Family Benefits

In the event the H-1B beneficiary seeks alternative employment, he/she will need to transfer the H-1B visa. The H-1B holder may begin working in the new job prior the approval of this transfer, however, if the transfer is not approved the original H-1B visa will be lost. It is therefore recommended to complete the transfer before starting work in the new job. H-1B dependents (family members) or H-4’s can live and study in the U.S. as long as the H-1B or "primary" visa remains valid.

What are the Employers Obligation

• If the H-1B employee is terminated for any reason before his/her authorization to work in the U.S. expires, the employer is liable for the reasonable transportation costs to return to the immigrant's last place of residence.
• Employer is prohibited from charging a terminated H-1B employee a penalty for leaving his/her employment prior to any agreed date.
• Employer must pay the H-1B employee the required wage no later than 30 days from the H-1B employee's entry into the U.S., or 60 days from the approval date of the visa petition if the H-1B employee is already in the U.S.
• Employer must provide the same working conditions and pay the same benefits to H-1B employees as they do for U.S. employees.
• The employer shall keep a copy of the LCA application and appropriate employment and wage records supporting the validity of the statements made in its LCA application and shall make this information available in the event that the U.S. Department of Labor or the U.S. Immigration Service requests it.

There are additional job posting requirements or "attestations" imposed on employers that are H-1B dependents. The guideline established by the Immigration and Nationalization Act (INA) below determines that an employer is H-1B dependent if:

• The employer has a total of 1 to 25 FTE's (Full-time equivalent employees), and employs 7 or more
  H-1B employees.
• The employer has a total of 25 to 50 FTE's (Full-time equivalent employees), and employs 12 or more H-1B employees.
• The employer has a total of 51 or more FTE's (Full-time equivalent employees), and 15% or more of those employed are H-1B employees.

Note: H-1B employees that have a minimum of a Master's degree or earn U.S. $60,000 or more, exempt their employers from these additional job posting requirements or "attestations".

What Documentation Do I Need?

All documents must be presented to the U.S. Immigration Service with their English translation. It is cost-effective and therefore recommended to our clients that they bring these documents translated to our office:

• Birth certificate
• Copy of passport, current visa, and your I-94 form (I-94 form only if you are already in the U.S.)
• Copies of university transcript(s)
• Copy of your resumé
• Copy of any educational certificates or diplomas
• Letters of recommendation from
  1. present employer
  2. previous employer (if possible)
  3. previous instructors/professors (if possible)
• Job description outlining duties and responsibilities and minimum experience and education required for position
• Letter from American sponsoring employer with offer of employment, including position and salary offered

Sponsor employer information needed:

• Address, telephone, and fax numbers
• Tax ID number
• Name and title of direct supervisor
• Description of their recruitment efforts to date
• Description of their business and the business date of inception
• Number of current employees at company
• Number of current employees with H-1B visas
• Current financial statements (balance sheet and income statement or tax returns)
• Any marketing material describing the employer and its business

What Is The Process Like?

There are three major stages:

Stage One:
Approval of the prevailing wage request with the applicable State Department of Employment (Approximately 1 week)

Stage Two:
Approval of the labor certification, form ETA 9035 by the U.S. Dept. of Labor (Approximately 1 week)

Stage Three:
Approval of the H-1B visa application, consisting of forms: I-129, I-129 H and I-129 W (Approximately 60-180 days) or receipt of notice requesting additional documentation or evidence to support application. In the latter case, we will work with the client to provide the additional information to the US Immigration Service and we will prepare a response with the appropriate analysis and legal argument. This last scenario would increase the amount of time required to complete the process and may also increase the legal fees due, depending on the amount of additional work required.

Note: Time estimates vary depending on the volume and processing times of the different U.S. Immigration Service centers.

Visa limitations: There are yearly limits or caps on the number of H-1B visas available. It is therefore recommended to start processing an H-1B as soon as possible, as the annual caps on H-1B visas may delay the start date of an H-1B employee. Click here to learn about the current H-1B visa caps.

What are The USCIS Filing Fees

Fees for I-129, $1,000 employment fund fee (except if sponsoring employer is a non-profit), plus $1,000 if we will be requesting premium processing. Click below links to verify the U.S. Immigration Service fees as these change regularly:
http://www.uscis.gov/forms

What are The Legal Fee

Click here to learn more about our fee structure.
Click here if you would like to come in for a free initial consultation.

Where Can I Get More Information

Eligibility for H-1B visa

H-1B Fiscal Year (FY) 2011 Cap Season

Premium or fast processing of H-1B visas