H1B VISAS
The H1B Visa is a United States nonimmigrant visa, which allows a U.S. company to employ a foreign individual for up to six years and which may also lead to a Green Card. It allows business professionals to work in the United States for a specific amount of time, and the purpose of the H-1B visa is to give U.S. employers the opportunity to hire foreign professionals if a U.S. citizen or resident is not available.
The following are general requirements of H1B visa, but please be advised that these are reviewed on a case-by case basis. The general Requirements are
- Job offer from a US employer;
- Job must be in a “Specialty Occupation” (or fashion model);
- Must require a Bachelor’s degree or higher;
- Coming temporarily to US (although there is no foreign residence requirement);
- Labor Condition Application (LCA) requirement
In addition, while there are certain exemptions, generally, there is an annual cap of 65,000 H1B visas which may be given, and they usually run out after the first week that the application period begins (April 1). Furthermore, if there are more applications then the cap, a lottery is held.
The job offer must be for permanent employment, but which must be temporarily filled. In addition, the employer must give similar working conditions to the H1B employee, as would be given to other employees. This includes hours, shifts, vacation, and other fringe benefits. The wage must be the “required wage” –which is defined as “the greater of the actual wage level paid by employer to all other individuals with similar experience and qualifications for the specific employment at the place of employment” OR the prevailing wage for the occupation in the area of employment.
A “specialty occupation” is defined as needing “Theoretical and practical application of a body of highly specialized knowledge” and “attainment if a Bachelor’s degree or higher degree in the specialty.” Certain factors to take into consideration in determining this could be: tasks, demands, duties and actual requirements of position as specified both by petitioner and industry.
In addition, before the H1B application is even filed, the employer must file and obtain approval of a Labor Certification Application (LCA) with the Department of Labor (DOL). Labor certification is a process of proving that there are no qualified US workers for the position being offered. If there are qualified US workers – in fact, even generally speaking if there are even minimally qualified US workers – then the foreign worker cannot be offered the position on a permanent basis.
Finally, there are many more details and procedures than can be filled into a short article as this one. Therefore, it is best to contact an attorney or person with expertise with H1B visas, since there is a wealth of information, applications, and/or procedures that should be reviewed and properly executed.
All said and explained in this article does not constitute a legal opinion and does not replace legal advice. Responsibility for using the wordings and opinions conveyed in this article relies solely and entirely on the reader.
This article was written by Dotan Cohen Law Offices, working in the field of immigration law in the United States, Canada, Australia and England.
