|
PROFESSIONALS
WORKING IN THE UNITED STATES
H-1B Temporary
Worker Visa
The H-1B nonimmigrant visa may be used to bring a worker temporarily to
the United States if the employee will work in a "specialty occupation" or a
professional position. The Immigration Act of 1990 made significant changes in
the employer's obligations with respect to obtaining the H-1B visa including the
forms and application procedures. Be sure to consult with an attorney
experienced in immigration matters to be certain that this is the appropriate
visa category for your purposes.
What Does the Employer
Do?
Qualify as a U.S. Employer.
The employer must have a U.S. taxpayer identification
number. Foreign businesses not established in the U.S. cannot use this visa
to bring employees here.
Obtain an Approved Labor Condition Application.
The Employer must prepare and file a Labor Condition
Application (LCA) with the Regional Office of the Department of Labor (DOL).
The LCA is a form which must be carefully prepared and posted in two
conspicuous places at the work site. The form requires the employer to
describe the position and the salary. The LCA also requires the employer to
attest to complex facts concerning the wage, working conditions, labor
conditions and the giving of notice.
Once the LCA is approved, the employer files a petition with the
Immigration and Naturalization Service. The employer must document that the
position requires the services of a person in a "specialty occupation." This
means a person who is working in a professional position and who has a minimum
of a bachelor's degree or its equivalent.
What Are the Employer's
Liabilities?
Completing the LCA is just the beginning. The employer must also
maintain wage and hour records, as well as information concerning working
conditions for all similarly situated employees. Upon request, these records
must be provided to DOL's Wage and Hour Division.
If an employer does not document the wage, pay the required wage or
maintain the required records, the employer could be liable for substantial
penalties including back pay and fines of up to $1,000. The employer could
even lose the right to to apply for H-1B visas as well as all other immigrant
and nonimmigrant visas for up to one year.
If the employer terminates the services of the employee prior to the
expiration of the H-1B Visa, the employer is responsible for paying for the
employee's return transportation to his or her last foreign
residence.
[ Go
back to top of page ]
What Does the Employee
Do?
The employee must prove that he or she is qualified for the specialty
occupation and the specific job offered by the employer. The employee must be
able to show that his or her foreign university degree is the equivalent to a
U.S. degree by obtaining a credentials evaluation of his or her
education.
If the worker is in the U.S. and currently holds a valid nonimmigrant
visa status, he or she may apply in the U.S. for the H-1B visa. For example,
if he or she has lawful student status (F-1), the worker may seek a change
from F-1 to H-1B. This change only gives the person the ability to work in
U.S. for the sponsoring employer. if the worker needs to travel abroad, he or
she will need to apply for an H-1B visa at a U.S. Consulate. Workers not in
Lawful status in the U.S. or those residing abroad, must apply for an H-1B
visa at a U.S. Consulate.
[ Go
back to top of page ]
How Long Can the H-1BEmployee
Remain in the U.S.?
The H-1B is a temporary visa with specific limitations on periods of
stay in the United States. The initial petition may be approved for up to
three years. After the initial period, three more years are
available.
The employer must update or re-file the LCA and must file H-1B petition
extensions. After six years, the worker must spend one year outside the United
States before he or she is entitled to have another H-1B visa. Many workers on
H-1B visas obtain permanent resident status (the "Green Card") during their
initial stay in the U.S.
The H-1B employee's spouse and unmarried children under 21 years old
may be granted an H-4 visa. An H-4 visa holder is not permitted to work in the
United States. They may, however, attend school.
[ Go
back to top of page ]
|
