H-1B: Visa for Professional Workers
H 1B classification is temporary employment authorization issued by the US Citizenship and Immigration Service (USCIS) to foreigners in “specialty occupations.” In the H 1B process, the employer is called the “H-1B Petitioner” and the prospective employee is called the “H-1B Beneficiary.” A person already holding valid H 1B status may start working for a new H 1B employer as soon as the new H-1B petition is filed with the USCIS. Otherwise, the H 1B beneficiary may start working only upon USCIS approval of change of status or upon admission into the US in H-1B status. H-1B dependents (spouse and unmarried children under 21) are given H-4 status. A person holding H-4 status is not eligible to work.
H-1B Employer Requirements: The job offered must be in a “specialty occupation.” This means that a specialized bachelor’s degree (or higher) or its equivalent is the minimum requirement for the job by the employer’s internal standard and industry standard. The employer must have a bona fide need for the beneficiary’s services and provide prevailing wages and working conditions.
H-1B Employee Requirements: The H-1B beneficiary must be qualified to work in the specialty occupation, by possessing the required degree in the specialty area, or a foreign degree that is equivalent to a U.S. bachelor’s degree in the specialty area. The beneficiary may also qualify through licensure or a combination of education, training, and or experience that is equivalent to the required degree.
H 1B: A three steps process
The H 1B process normally involves three steps. The first step is to obtain an approved Labor Condition Application (LCA) from the Department of Labor (DOL). The second step is obtaining approval of the H 1B petition from the USCIS. A third step, obtaining an H 1B visa stamp in the employee’s passport from an American Consulate or Embassy, is generally required if the employee will enter the US from abroad. This third step is not required for Canadian citizens.
1. The Labor Condition Application. The Labor Condition Application (LCA) is filed with the Department of Labor. The LCA (Form ETA-9035) is the employer’s attestation regarding compliance with the following conditions:
A. Wages & Benefits. H 1B workers will receive the higher of either the average wage that the employer pays other employees in the same position, or the industry average wage (called the prevailing wage). H 1B workers will receive employee benefits on the same basis as US workers
B. Working Conditions. Employment of H 1B workers may not adversely affect the working conditions of other workers
C. No Strike or Lockout. There is no strike, lockout or work stoppage in the H 1B occupation at the place of employment.
D. Notice to Workers. Notice of the LCA has been provided to other company employees in the same occupation. A copy of the LCA will be provided to the H-1B employee.
E. H-1B Dependency. If more than 15% of the employer’s workforce is employed under H-1B status and earns less than $60,000 per year, the employer must agree that it not directly or indirectly displace US workers with H-1B workers, and it will recruit and hire available US workers who are equally or better qualified than H-1B workers.
2.The H 1B Petition. The H 1B petition is submitted to the USCIS. An H 1B petition may be approved for up to three years, and extensions are available up to six or more years. The processing time for an H-1B petition varies between 1 to 5 months. The USCIS offers premium processing, which commits them to completing case action within 15 days. 65,000 new H 1B workers can be approved each year. An additional 20,000 H-1B approvals are set aside for those with US graduate degrees. There is no limit on the number of H-1B employers the H-1B beneficiary may be approved to work for within the six-year period. An H-1B beneficiary may be approved for concurrent H-1B employment with more than one employer.
3. The H-1B Visa Stamp. After the H-1B petition has been approved by the USCIS, the employee may go to an American Embassy or Consulate overseas to obtain an H-1B visa stamp. The visa stamp in the passport is generally required for entry into the United States in H-1B status. Dependent family members follow the same process to receive H-4 visas for use in entering the U.S. The H-1B/H-4 visa stamping process normally is completed within 1 to 5 days after an interview at the American Embassy or Consulate.
Because government processing times vary and a case may have special circumstances, the H-1B beneficiary should not make any final plans such as starting or terminating employment or school, traveling to or from the United States, purchasing nonrefundable tickets, selling or buying property, signing or terminating a lease, shipping or storing personal goods, etc., until H-1B status is granted.