H-1B Visa - Employment Visa for the USA
The H-1B visa category is intended for employees seeking to work in the U.S. temporarily. The advantage of H-1B visas is that in contrast to the L and E visas, the U.S. employer must not satisfy particularly complex prerequisites and the requirements placed upon the foreign employees are also less demanding. For example, the employee is not required to have worked outside of the U.S. for a company that is related to the prospective U.S. employer. The primary disadvantage of the H-1B category is the limited number of visas available each year – this is the so-called “H-1B Cap,” which limits the number of new H-1B visas to 65,000 per year. And, because there are typically more H-1B petitions submitted than there are visas available, U.S. Citizenship and Immigration Services (“USCIS”) holds an annual lottery to determine which of the many applicants will have the opportunity to receive an H-1B visa. Given the uncertainty the H-1B lottery causes, it is advisable to consider other visas first.
The exception to this general rule is that an unlimited number of H-1B visas are available to employees who plan to work at universities, nonprofit organizations or government-related research institutes. The positions to be filled at these types of organizations are “cap-exempt,” making the H-1B visa a much more attractive option for propective employees of such organizations.
Besides physicians and models, the H-1B category can be considered by those applicants who have at least a bachelor’s degree or a foreign equivalent, a proven record of professional experience or a combination of both.
The applicants who received their degree abroad are required to demonstrate that it is the equivalent of a U.S. bachelor’s degree. An equivalency evaluation can be conducted by any of a number of private companies located in the U.S., which evaluate the foreign degree and issue an equivalency evaluation, which is usually recognized by USCIS.
Persons who completed a master’s degree at a university in the U.S. enjoy the added benefit of being able to apply for one of the additional 20,000 H-1B visas that are set aside only for such graduates (the “master’s cap”).
Requirements for the employer
Similarly to other work visa categories, the H-1B application process necessitates a concrete job offer from a U.S. employer.
Additionally, the offered position has to reflect the need for the applicant’s specific skills. The proposed salary cannot be less than that of an employee with similar work experience and qualifications, and the employment of the foreign worker cannot put at a disadvantage any group of job seekers.
Lastly, the company where the applicant would work must not be experiencing any ongoing strikes.
Before the U.S. employer can file a petition for the applicant with USCIS, he must first submit a Labor Condition Attestation (LCA) to the U.S. Department of Labor. The attestation contains, among other things, statements pertaining to the proposed salary and a confirmation that there are no ongoing strikes at the company. Furthermore, the employer must confirm that either the relevant trade union has been informed of the H-1B petition or, if there is no trade union, that the employer has provided suitable notice to other employees of the company for at least ten days.
And if a significant percentage of a company’s employees have H-1B visas, this may further complicate the petition process.
Validity and extension of the H-1B visa
In most cases, the H-1B visa is initially issued for a period of three years and can be extended, but not for longer than a total period of six years. However, in some circumstances, the six year maximum may be overcome if a I-140 petition for a Green Card is pending.
H-1B visas and green cards
In contrast to many other visa categories, including the H-2B, a H-1B visa applicant does not have to prove that he has no immigrant intent or provide proof of an intent to resume residence abroad after his H-1B status expires. Additionally, the applicant is eligible to file an application for a green card while working in the U.S. – without such application having any adverse effect on his immigrant status.
Spouses and unmarried children under 21 can apply for an H-4 visa to accompany the main applicant. However, they are generally not granted the permission to work. One key exception to this rule is that H-4 spouses may apply for employment authorization if the H-1B visa holder is the beneficiary of an approved I-140 green card petition.
We would be happy to answer your questions about the H-1B visa or any other U.S. visas!
We would be happy to evaluate whether you fulfill the requirements for the H visa, or whether there are other alternatives for you to obtain a different work visa. Please contact our experts Attorney Thomas Schwab or U.S. Attorney Morgan Hangartner if you wish to schedule a consultation – either via E-Mail (firstname.lastname@example.org) or by phone (+49 (0)69 76 75 77 80).