H1-B Visas

During the first week of April, over 100,000 hopeful job seekers will send their H1-B applications to USCIS. CIS will return the forms and fees to more than 40,000 of these applicants.

H1-B Visas are for foreign professionals interested in entering the United States on a work visa. With such a limited number of H1-B visas available, it’s necessary to have the employers begin the application process as early as possible.

The current H1-B quota is 65,000 visas in the Regular category and an additional 20,000 visas for graduates of master’s degree programs in the US. The job offered must be a “specialty occupation” requiring at least a bachelor’s degree. Examples of qualified positions are engineers, professors, researchers, medical, accountants, attorneys, and architects, and computer systems analysts. The H1-B visa is initially granted for up to three years, but may then be extended to a maximum of six years.

To start the process, the employer has to determine the average wage paid to U.S. employees in the similar fields. The foreign professional must receive at least that prevailing wage. The employer must also show that by hiring the foreign professional, this will not affect U.S.working conditions in similar fields. After these two steps, the employer then files an I-129 petition with CIS to get the H1-B visa for the applicant.

US employers can begin applying for the H1-B visa six months before the actual start date of the visa. Employers can apply as soon as April 1, 2016 for the FY 2017 cap, but the beneficiary cannot start work until October 1, 2016, which is the start of the government fiscal year for 2017.

Current immigration law allows for a total of 85,000 new H1-B visas to be made available each government fiscal year. This number includes 65,000 new H1-B visas issued for overseas workers in professional or specialty occupation positions. An additional 20,000 visas is available for those with an advanced degree from a US academic institution. Once the visa cap has been reached, USCIS will stop accepting H1-B petitions for FY 2017 and will not accept new applications until April 2017.

Even though the H1-B visa is a non-immigrant visa, it is one of the few US visa categories recognized as dual intent, meaning the H1-B visa holder can apply for and obtain a US Green Card while in the US on an H1-B visa. If you are still in the US on an H1-B visa and wish to remain in the US for more than six years, you can apply for permanent residency in the US to receive a Green Card. If you do not gain permanent residency prior to the expiration of your H1-B visa, then you must live outside the US for at least one year before reapplying for another H or L visa.

H1-B visa holders can bring their spouse and children under 21 years of age to the US under the H4 Visa category as dependents. An H4 Visa holder is allowed to remain in the US as long as the H1-B visa holder remains in legal status. An H4 visa holder can apply for employment authorization, can attend school, can obtain a driver's license and can open a bank account while in the US.

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Q.1 What is the difference between the Prevailing Wage and the Actual wage?
A.1. The prevailing wage is determined by the State Employment Security Agency. The actual wage is what is paid to other workers in the same positions with the same level of experience. The employer is required to pay the higher of the two.
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Q.2. Are H1-B workers eligible for fringe benefits?
A.2. Recently, Congress determined that employers must offer H1B visa holders the same benefits as their other workers. This includes health, life, medical, retirement, stock options and bonuses.
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Q.3. How long does it usually take CIS to process H1-B petitions?
A.3. With Regular processing it could take a few months. Employment cannot begin until USCIS approves and has issued the H1-B Visa. After CIS approves the application, the H1-B visa beneficiary then applies for personal and family visas at the Consulate.

ROBERT MULLINS INTERNATIONAL www.rmiodp.com www.facebook.com/rmiodp
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