What is the difference between a temporary work visa (H-1B) and employment-based “permanent” immigration?
A temporary work visa (H-1B) allows someone to come to and work in the U.S. for a period of up to six years; it does not necessarily lead to permanent residence. Employment-based immigration, on the other hand, leads to “permanent” immigration. (For a fuller discussion of employment-based permanent immigration, see section below.)
How do H-1B visas differ from other non-immigrant visas?
Non-immigrant visas such as B-1/B-2 visas, F-1 visas, and M visas, require those applying for them to demonstrate that they do not intend to immigrate to the U.S. permanently. U.S. Citizenship and Immigration Services (USCIS) allow holders of H-1B visas to have “dual intent,” meaning that even though they are currently in the United States on a temporary visa, they can pursue permanent immigration here without jeopardizing their temporary visa status. Thus, applicants for H-1B Visas, (as opposed to applicants for other non-immigrant visas) do not need to prove an intent not to immigrate. Further, some categories of non-immigrant visa require that their holders maintain a foreign residence. This is not a requirement for the H-1B.
Who can qualify for an H-1B visa?
People who are trained for “specialty occupations” (e.g., accountant, computer programmer, dietician, journalist, etc.) that require at least a bachelor’s degree are eligible for H-1B visas. Experience alone may be substituted for educational credentials (where three years of incremental professional experience equal one year of schooling, 12 years of work equal a bachelor’s degree) if such experience includes skills and knowledge required at the professional level.
When someone uses experience in place of a four-year bachelor’s degree, it is imperative to submit to USCIS an evaluation of their work experience. There are many credentials evaluation companies in the U.S. that can prepare this evaluation. It is important to speak to these companies, find out which law firms utilize their services and make sure that they are reputable companies whose opinions USCIS values. You can find these evaluation companies by contacting the American Immigration Lawyers’ Association (AILA) or other immigration sources.
What kinds of positions qualify for an H-1B visa?
In order for a position to qualify for an H-1B visa, USCIS requires not only that the position be a “specialty occupation” requiring either a college degree or the equivalent (see question #3 above), but also that:
- The position has been designated as “professional” by USCIS. If you are unsure of whether a position in question is designated as “professional,” consult an attorney; The employer is not asserting that the job requires a highly educated employee merely so that they can hire you;
- The job description (including the job’s actual tasks, demands, duties and requirements as outlined by the employer) has been evaluated according to the current standards of the industry; The job description requires a specific course of study that relates closely and directly to the position;
- The form, method and amount of compensation are appropriate for the position.
Can I apply for an H-1B visa myself without having been offered a job?
No. Someone must have been offered a job by an employer in order to be eligible to apply for an H-1B visa.
Having been offered a job, one may take certain steps to facilitate the process of applying for an H-1B visa (e.g., finding a lawyer), but the employer must fill out the forms and officially apply for the foreign national. To do this, the employer must complete a labor condition application (LCA) which certifies that they plan to offer you a salary that is either equal to or higher than the actual wage level paid by that employer to other individuals with similar experience and qualifications, or the prevailing wage for the occupation in the area of employment. USCIS must then approve the LCA. The LCA must be renewed every 36 months.
It is important to exercise caution before agreeing to be sponsored by an employer for an H-1B visa. Always check around to make sure the job and employer are legitimate. If the employer asks the foreign national to pay the fee for the H-1B visa, for example, they should definitely check the validity of the company. Immigration Equality is aware of instances in which employers or headhunters have charged individuals fees and obtained H-1B visas for them when they in fact had no job to offer. Such individuals have fallen out of status because their “employers” do not pay the salaries they agreed to in the H-1B petition.
Can H-1B visa holders change employers or their place of employment while on an H-1B visa?
Yes, H-1B visa holders can change employers. To do so legally, however, the new employer (or current employer if the individual simply change locations) must file a new or amended petition. The filing of a new or amended petition is necessary when:
- the place of employment is changed if the change would invalidate the labor condition approval (see question #5 above)
- the employee’s duties change from one specialty occupation to another, or a material change occurs in the terms and condition of employment (e.g., a change of geographic location)
Can someone work for multiple employers while on an H-1B visa?
Yes. H-1B visa holders can work part-time for multiple employers as long as each employer files a separate visa application. There is no limit to the number of weekly hours an H-1B visa holder can work.
What is the maximum amount of time someone can stay in the U.S. on an H-1B visa?
An H-1B visa is valid for as long as the LCA certification is valid (see question # 5 above). In most cases, this is a period of three years; it can be less than three years, but never more. If the period of validity of the LCA is less than three years, the H-1B visa will be valid for that same shorter amount of time. After the initial stay (of three years or less), the foreign worker may renew their H-1B visa for another three-year period, up to a maximum of six years. If someone holds an H-1B visa and habitually spends less than six months per year in the U.S., the maximum amount of time for which their visa can be extended may exceed six years. If an H-1B visa holder has been unemployed or has fallen out of status in the U.S. in the past, USCIS will include that past time in its calculation of the total amount of time they may hold an H-1B visa.
If someone’s employment is terminated while they are holding an H-1B visa, how and for how long can they stay in the U.S.?
If one’s employment is terminated while they hold an H-1B visa, they have ten days from the date of termination either to find another job and see that their new employer files for another H-1B visa, or change their status to some other category of non-immigrant visa. If they fail to maintain status (either through finding another job or changing status) within ten days, they must leave the U.S.
Can a U.S. citizen partner start a business to employ a foreign national on an H-1B visa?
Yes. It is possible for a U.S. citizen partner to start a business and employ their partner on an H-1B visa as long as the company and the job offer are bona fide, and both parties can meet all the requirements for an H-1B (see questions #3 and #4 above). The start-up company should also be able to show substantial business activity prior to the hiring of a foreign worker.
The requirements of an H-1B visa application do not include the ability of the employer to pay the salary or remuneration. It is suggested, however, that individuals include such evidence with the H-1B petition. In some cases USCIS has also accepted documentation relating to the personal ability of the employer to fulfill the salary obligations.
What is the H-1B cap and will this affect one’s ability to obtain an H-1B visa?
Congress has implemented a cap of 65,000 on the number of new H-1B visas which USCIS can issue each year. This cap does not affect renewals, only new applications. The fiscal year for immigration purposes begins on October 1, which means that USCIS will not consider applications for the next year until that date. H-1B applications for the fiscal year beginning in October, can be submitted six months prior to the start of the fiscal year, meaning any time after April 1. The first year that the H-1B cap was in effect, all of the visas were filled on October 1 by previously submitted applications.
Permanent Employment-Based Immigrant Visas
Several different varieties of employment-based immigrant visas are available. Eligibility for all of these is contingent on an employer’s ability to show that there are no U.S. workers available to fill the particular position for which the foreign national is being hired. The stated policy behind this requirement is an intent to protect U.S. workers by ensuring that U.S. citizens have maximum access to the job market.
Employment-based immigration is divided into five classes, each with its own requirements and annual limits on the number of visas available. Please note that there is no significance to the order in which the preferences are listed — for example, fifth preference visas are actually easier to come by than first preference visas.
Priority Workers: Aliens with extraordinary abilities
Persons seeking entry under this class must have extraordinary ability in the sciences, arts, education, business or athletics. Their achievements must have been recognized nationally or internationally in the field through extensive documentation. Aliens seeking to immigrate under this category do not require labor certification or an offer of employment.
Priority Workers: Outstanding Professors and Researchers
Persons seeking entry as immigrants under this category must be internationally recognized as outstanding in a specific academic area and must have at least 3 years of experience in research or teaching in their field. This category requires an offer of employment in the form of a letter but does not require labor certification.
Priority Workers: Certain multinational executives and managers
Persons seeking entry as immigrants under this category must meet a similar standard to an “L-1″ executive or manager. This category does not require an approved labor certification.
Advanced degree holders and aliens of exceptional ability
This category includes workers with advanced degrees or their equivalent and workers with exceptional ability in the sciences, arts, or business, whose contributions will substantially benefit the national economy, or cultural or educational interests or welfare of the U.S. If an applicant’s skill is in the national interest, the individual is not required to have a specific job offer and will be exempt from the requirement of labor certification. National interest waivers are granted if it can be shown that the alien will benefit the U.S. economy, improve wages and working conditions for U.S. workers, improve education and programs for children and under-qualified workers in the U.S., or improve the environment.
People falling into this category require at least two years of training or experience. They must also obtain labor certification.
People eligible for this visa category must possess a bachelor’s degree or its foreign equivalent and must demonstrate that the degree they hold is the typical requirement for entry into the profession. In this case, experience does not compensate for a lack of education.
This category of visa is available to unskilled laborers with less then two years of training and experience. The waiting period for these visas is up to ten years.
This category of visa is available to people who are seeking reacquisition of citizenship, returning residents, religious workers, U.S. employees abroad or employees of American Institute in Taiwan for 15 years, and Panama Canal Treaty employees, etc.
Employment Creation (Investors in the U.S.)
This category allows conditional residency for persons who invest $1,000,000 (or, under certain circumstances, $500,000) in a new commercial enterprise that employs ten full time U.S. citizens or permanent residents who are not family members of the investor. People granted visas for this category are given two-year conditional resident status and can file for the removal of conditional residency before the second anniversary of being granted the visa.
What must an employer do to sponsor someone for a green card?
For most of the above categories, an employer will have to file an application for “labor certification” with the Department of Labor that demonstrates that there are no U.S. workers able, willing and qualified to fill the position the employer is offering. An employer can demonstrate this by, for example, advertising the position in local or national newspapers or trade journals and showing that no suitable U.S. workers applied for the job. The employer filing the petition must also be able to show the financial ability to pay the offered wage and that the employee meets the minimum requirements to perform the job satisfactorily. Once the labor certification is approved, it is submitted to USCIS. This submission constitutes your employer’s request to hire you for the position. After obtaining the approval of USCIS, the foreign national must file an application to either “adjust” status if they are already in the U.S. (this is filed with USCIS) or obtain an immigrant visa if you are abroad (this is filed with the U.S. embassy or consulate). Once this application is approved, the individual will become a permanent resident in the U.S. and may commence permanent employment.
Can someone change employers while their employer-sponsored application for permanent resident status is pending?
Yes. If an employer has filed the application with the Department of Labor, the beneficiary may change employers before a final decision is made on labor certification, provided the particular job opportunity remains available to them when they obtain legal permanent status. The employer is not required to continue with the immigration application process and may withdraw from sponsoring the foreign national. In this situation, the new employer will have to start the labor certification process again.