What is a H1-B Visa?
The H1-B visa program allows employers to hire/bring non-immigrant foreigners into specialized positions. These are specialty occupations that require individuals with distinguished merit and skills. For US employers who cannot find requisitely skilled US employees, this program allows them to fill their positions with the skilled professionals they need from outside the US. In the same fashion, a company that would like to hire a specific specially skilled foreigner worker, must also go through the same process to sponsor that worker for an H-1B visa. Foreign workers can be eligible for an H-1B visa if they are outside of the country or, in some cases, if they are legally in the US on a different non-immigrant visa. To determine a specific foreign worker's eligibility, individuals should consult an immigration attorney.
An H-1B status is generally, and initially, awarded for a temporary three-year period, with an option to extend the visa for an additional three years. Although the total time generally cannot go beyond a total of six years, there are some limited exceptions.
H-1B is a non-immigrant status, which means that it does not lead directly to permanent residency/green card. However, H-1B holders can be later sponsored by their employers for permanent residence.
The H1-B category has an annual (fiscal year) limit, or cap, of 65,000 visas. The number of applicants always exceeds the cap, so a lottery system is in place to randomly select cap-subject applicants. However, some occupations are not subject to the cap. An additional 20,000 H-1B visas are allotted each year for applicants with a master’s degree or higher from a U.S. university. Applicants who are being sponsored by US institution of higher education, related non-profit entities and research organizations are not subject to the annual H-1B cap.
Employers who hire H1-B nonimmigrant workers must either pay the same wage as they would to any other US citizen with the required experience and qualifications, or they must pay the prevailing wage for that occupation. Employers must pay the higher wage of these two options. Employers must also provide ensure the same benefits to their H1-B workers as they would to a US citizen employee in that position.
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If you would like to talk to a lawyer about H-1B Visas, contact an attorney at Shoreline Immigration. We are available to answer all of your questions about Employment Immigration.
Questions about the H-1B Visa?
Spouses and children (dependents) of H-1B status holders are eligible to come to the US by applying for H-4 status. Dependents family members include a spouse or unmarried children under the age of 21. Dependents who are already in the US on a different valid, non immigrant visa may apply for change of status through USCIS. The duration of the H-4 visa status is the same as the principle H-1B status holder’s visa duration. While H-4 status holders are generally not allowed to work in the US, they are allowed to attend school. (H-4 status spouses of certain H-1B visa holders can file for Employment Authorization. Individuals should consult an immigration attorney to see if they qualify.)
An H-1B approved foreign worker may not change jobs and maintain their original H-1B approved status. H-1Bs are specific to an employer/position. This means that an H-1B employee cannot change jobs and continue with their H-1B status. The only way an H-1B employee can change jobs is if the new employer sponsors the foreign worker and the entire H-1B approval process is carried out again. Similarly, if an employer wants to change the terms of the employee’s job, they must submit an amended position to USCIS. This means that an employer cannot significantly change duties or conditions of employment with proper authorization. If the employer amendment is approved, then the H-1B may be continued.
There is a cap on the number of H-1B visas allowed per federal fiscal year. That cap is currently 65,000 H-1B visas. Because there is a cap for the entire country, it is important that employers file their applications in a timely manner. However, certain groups are exempt from this H-1B cap, including universities, related nonprofit entities, nonprofit research organizations, and government research organizations. Because these groups are exempt, they are able to file their applications at any time throughout the year. Additional exemptions may apply for certain individuals. An experienced immigration attorney should be consulted.