H Visas – Temporary Workers and Trainees

Non-Immigrant Visas

Temporary or nonimmigrant visas are available for people entering the United States for a limited period of time and for a specific purpose. In most cases, people applying for nonimmigrant visas must demonstrate that they intend to leave the United States when their visa expires and that they do not intend to immigrate. However, people who qualify for H-1B (professional worker), L-1 (intracompany transfers) visas, and possibly E-2 investor visas are exempted from this requirement.

Although nonimmigrant visas are considered temporary, many of them are available for a number of years. Unlike immigrant visas, most nonimmigrant visas are not subject to any numerical limits.

There are several types of temporary employment visas available in the H category. H-1 visa applicants must be entering to work in the U.S. temporarily, but unlike most other nonimmigrant visa categories, they do not have to prove intent to return to their home country and may intend to immigrate. H1 visa holders may change their status in the United States. They may also apply for permanent residence (a “green card”) through their employer or through other means. To learn more about immigrating through employment, click here. H-2 and H-3 visa holders must prove to the INS that they do not intend to stay in the United States and will leave when their visa expires. H-4 visas are granted to dependents (spouses and children under 21) of H-1, H-2 or H-3 visa holders.

H-1B Visas

Introduction to the H-1B Visa
The H-1B visa is the best available US immigration work visa for many people seeking temporary work permit and permanent US immigration.  This US immigration visa is available for up to three years and may be extended another three years for a total of six years.  US immigration law also allows H-1B visa holders who have PERM Labor Certification applications pending for over 365 days or approved immigrant visa petitions to extend past the 6 years limit. There may also be opportunities to recapture time that the H-1B visa holder spent outside the United States.

Limited Number of H-1B Visas Available
Due to the popularity of this US immigration visa and the relatively small number of H-1B visa available, first time H-1B visa applicants must file their petitions on (not before) April 1, 2008.  This deadline is critical because in 2007 all available visas we used up on the first day that one can apply, April 1st.

There are a maximum of 65,000 H-1B visas issued per year for all professionals, plus an additional 20,000 H1B visas for people who have a master’s degree from a United States university.  Nationals of Singapore and Chile draw from a separate cap of 6,800 (5,400 for Singapore and 1,400 for Chile).

There are exceptions to the H1B cap which include: (1) foreign workers employed at a university, affiliated non-profit entity, non-profit research organization, or government research organization; (2) foreign workers have obtained an H-1B within the last six years, even if it was not with the petitioning employer; and (3) Foreign doctors who obtained a Conrad 20 waiver of the J-1 two-year home residency requirement.
H-1B visa numbers are allocated by fiscal year.  The Fiscal year begins October 1 of every year. However, US immigration regulations allow fling up to six months in advance of the start date, as early as April 1 of that same year.  In 2007, the US immigration service received nearly 120,000 application on April 1, 2007 for October 1, 2007 start dates thereby exhausting the 65,000 H-1B cap in one day.   Therefore, it is critical to begin the process of drafting an H-1B visa application early.  It is also important to note that if filing for a change of status in the United States, the alien MUST maintain his or her status until October 1 (not April 1) to be eligible for a change of status. Sometimes this can be done with a tourist visa.

US Immigration Requirements for the H-1B Visa
The H-1B visa is available for employers sponsoring people to work only in specialized occupations or professions. This means that the job the person is being offered must be one in which employers normally require at least a US bachelor’s degree to do the job.  The US bachelor’s degree requirement must be common in the industry for the position.  For example, an offer to work in the United States as a secretary would not qualify one for an H-1B v isa, whereas an offer to work as a computer programmer would qualify for an H-1B visa.  The difference is that most US employers do not require a bachelor’s degree for a secretary position, but do require a bachelor’s degree for a computer programmer.  If it is determined that the job is in a specialty occupation or profession, the employer must prove that the person to whom the job is offered has the necessary education and/or experience. If licensure is required, the employee must also be able to qualify for a license in the state that he/she intends to work.

Another important requirement for the H-1 visa is that the employer must pay the employee at least the prevailing wage for the occupation. The prevailing wage is determined either by requesting it from the State Department of Labor where the employee will work or by using published wage surveys for the occupation in the geographic area of employment.
The process of obtaining an H-1B visa is highly regulated. Before an H-1B visa can be granted, the employer must file a Labor Condition Application (“LCA”) with the Department of Labor, attesting that they are offering at least the actual or prevailing wage paid to similar employees. The employer is also required to keep certain payroll information in a “public file” as well as other documentation regarding how it arrived at the wage it is paying. Failure to keep such documentation could result in substantial fines against the employer as well as suspension of the employer’s ability to recruit foreign workers. Accordingly, the US immigration attorney at RAPA Law sends these documents to the employer to ensure that they are in compliance with US immigration laws.

Intention to Immigrate Allowed for H-1B Visa Holders
One of the things that makes the H-1B visa so desirable is that, unlike many other temporary US immigration visas, it is a “dual intent” visa. This means that a visa will not be denied simply because an individual has intentions to permanently immigrate to the US or has even applied for permanent residency.

Spouse and Children of H-1B Visa Holders
A spouse or unmarried child (under 21) of an H-1B visa holder is entitled to an H-4 visa, and the same length of stay as the principal. This is true even if the H-1B visa holder marries after obtaining the H-1B visa.  The spouse and dependent minor children cannot accept employment, but can attend school in the United States.

Change of Employers Allowed for H-1B Visa Holders
Under the AC21 “portability” provision, H-1B visa holders can begin working for a new employer as soon as the new employer files an H-1B visa petition for the worker. In the past, the H-1B visa holder had to wait for the petition and not on the ultimate approval.

Other Information about the H-1B Visa
Premium processing or expedited processing is available for H1B applicants.
The above information is not set forth in USCIS forms and is only a summary of regulatory requirements. Employers should seek legal advice from the US immigration attorney at RAPA Law before undertaking this process to protect themselves from liability.

H-2 Visas

H-2 visas are for temporary agricultural (H-2A) and temporary nonagricultural (H-2B) workers coming to the U.S. to fill an employer’s temporary need. H-2 visa applicant must demonstrate non-immigrant intent. Employers wishing to bring in H-2 workers must file an application for labor certification to demonstrate that there are no U.S. citizens or permanent residents available for the position.

H-3 Visas

H-3 visas are for people coming to the U.S. to receive training which is not available in the applicant’s home country. The training must not be for the purpose of obtaining a job in the United States. The training program must meet several conditions to be approved. H-3 visa applicants must demonstrate that they will not immigrate to the United States.

H-4 Visas

H-4 visas are available for spouses of H-1, H-2, H-3 visa holders. H-4 visa holders may not work in the United States.

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