The Employer’s Guide to H-1B Visas - Immigration Lawyer Miami

The Employer’s Guide to H-1B Visas

If you’re an employer who wants to hire workers in occupations that require theoretical or technical expertise in highly specialized fields – including IT, finance and accounting, architecture, science and more – you may be able to bring in foreign nationals under the U.S. government’s H-1B visa program.

What is an H-1B Visa?

An H-1B visa is part of a special program run by the U.S. government so that businesses can hire foreign workers. These types of visas are only available for certain occupations, and the government only gives out a certain number of them each year.

According to U.S. Citizenship and Immigration Services, this program is only for “occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent.”

In many cases, businesses that want to hire job candidates from outside the U.S. work with Miami immigration attorneys to smooth out the process.

A person can’t just apply for an H-1B visa. An employer must apply on behalf of a candidate it wants to hire, and the employer must have a job open for that candidate.

Specialty Occupations in the H-1B Visa Program

You must be offering a specific job to a specific candidate to participate in the H-1B visa program. The job you’re offering must meet one of the following criteria:

  • The job’s normal minimum entry requirement is to have a bachelor’s degree or its equivalent, or higher.
  • The job is so complex or unique that it can only be performed by a person with a degree, or the degree requirement for the job is standard in the industry.
  • You (the employer) usually require a degree or its equivalent to fill this position.

In addition to your business meeting these criteria, the person you want to hire must meet the following requirements:

  • Your candidate must have a U.S. bachelor’s or higher degree that correlates with the job, and the degree must be from an accredited college or university.
  • Your candidate must have an unrestricted state registration, or certification which authorizes the practice of the specialty occupation, and he or she must be engaged in that specialty in the state of intended employment.
  • Your candidate must have the training, experience or education necessary to be considered equivalent to a degree in the same field.
  • Your candidate must hold a foreign degree that’s equivalent to the one a person must have to perform the job you’re offering.

Fashion Models Under the H-1B Visa Program

The H-1B visa is often available to fashion models, but only when the position or services require a prominent model. According to U.S. Citizenship and Immigration Services, the model you’re hiring must be “a fashion model of distinguished merit and ability.”

How Long is an H-1B Visa Valid?

Generally, workers who come to the U.S. on an H-1B visa can stay for up to 3 years. However, that time period can be extended if necessary. In most cases, the same visa can’t be extended past 6 years. During that time, some workers are able to change their immigration status. For example, a worker may be able to obtain a green card after meeting the minimum residency requirements.

How Many Visas Are Issued Each Year?The Employer’s Guide to H-1B Visas

The number of H-1B visas issued each year is subject to change, but currently, there’s a cap set at 65,000. That means only 65,000 people can come in under the program.

However, there is an advanced degree exemption available for the first 20,000 people who have earned a U.S. master’s degree or higher. Once the cap and the advanced degree exemption cap have been met, USCIS doesn’t issue any more H-1B visas until the following year.

Some employers aren’t subject to the cap. For example, institutions of higher learning, nonprofit organizations, affiliates of colleges and universities, nonprofit research organizations and government research organizations don’t have to worry about it. That means even if the cap has been met – including the advanced degree exemption – organizations that fall into one of these categories can still get applications through and approved.

Can a Worker Bring His or Her Family on an H-1B Visa?

Workers can often bring families along to the U.S. However, those family members must come under a different type of visa: the H-4 nonimmigrant visa. The H-4 visa is available to spouses of H-1B workers and the workers’ unmarried children who are under the age of 21.

As long as the family members meet the eligibility criteria and are admissible to the United States, they’ll be allowed to come and stay for the same time period the H-1B visa worker is granted.

Can Family Members Work or Attend School?

H-4 family members aren’t authorized to work in the U.S., but some spouses are eligible to file an application for employment authorization. Most H-4 family members can attend school in the U.S.

Sponsoring Employees on an H-1B Visa

There’s a filing window for employers that want to sponsor foreign workers under the H-1B visa program, but it’s best to begin your paperwork early. It is a process, and if you get your paperwork done early, you’ll be able to file as soon as the window opens – and while there’s no guarantee that USCIS will approve your petition, you’ll be closer to the head of the line for evaluation than you would be if you filed after the window opened.

If you want to hire foreign workers to fill a specialty position in your company, you must:

  • Notify your employees that you’re looking for H-1B nonimmigrants. Federal law requires you to let your current employees know by printing a hard copy of the notice or by electronically delivering it to them.
  • File a Labor Condition Application.
  • File Form I-29 once your Labor Condition Application is approved.
  • Wait for a decision. If you apply, you can check your prospective employee’s status online here as long as you have a receipt number.

What is a Labor Condition Application?

A Labor Condition Application (commonly called an LCA) is a document that you must file with the Employment and Training Administration, a division of the U.S. Department of Labor. If you plan to hire nonimmigrant workers, the Department of Labor must approve your LCA before you can even petition for H-1B visas.

The LCA includes an agreement that you’ll uphold certain standards (such as maintaining certain working conditions and undertaking a good-faith effort to find American employees).

How to Apply for an H-1B Visa for a Foreign Worker

Sponsoring job applicants is a three-step process. You can’t start the process until you’ve found a prospective employee who meets all the requirements (see “Specialty Occupations in the H-1B Visa Program” above). You’re not allowed to petition to be part of the program unless you have a specific person to hire; you have to petition on a specific person’s behalf.

The steps for applying for an H-1B visa for a foreign worker are:

  1. File a Labor Condition Application with the U.S. Department of Labor. You can’t go any further in the process until the Department of Labor has approved your application.
  2. File a petition to sponsor a specific worker. Your petition, which you file with U.S. Citizenship and Immigration Services, must include the approved LCA or it won’t be considered.
  3. Your prospective employee can apply to the Department of State to prove his or her qualifications for the visa. He or she also needs to apply to U.S. Customs and Border Protection for admission under an H-1B visa.

It’s your company’s responsibility to pay for all the application costs – your prospective employee doesn’t pay them. You must also acknowledge your responsibility for supporting your new employee and his or her family through the adjustment period. It can take time for people new to the U.S. to become accustomed to our culture, get driver’s licenses or enroll in school.

Necessary Documentation and Proof for H-1B Visas

Your company and your prospective employee may need to furnish proof and documentation to USCIS with the petition. You will need to prove that you’ll have a genuine employee-employer relationship, which you may be able to do with an employment contract (ask your lawyer if you’re not sure). You must also prove that you have enough money set aside to pay your new employee for at least a year, which you may be able to do with bank or other financial statements.

Do You Need to Work With a Miami Immigration Attorney to Sponsor H-1B Visa Recipients?

If your company needs to sponsor nonimmigrant workers through the H-1B visa program, we may be able to help you. Call our team of Miami immigration attorneys any time at 305-767-2445 or get in touch with us online to discuss your needs and find out what we can do for you.

 


About Davis & Associates:

Davis & Associates is the immigration law firm of choice in Miami, FL and surrounding areas. Their attorneys provide expert legal counsel for all aspects of immigration law, including deportation defense, writs of habeas corpus and mandamus, family-sponsored immigration, employment-sponsored immigration, investment immigration, employer compliance, temporary visas for work and college, permanent residence, naturalization, consular visa processing, waivers, and appeals. Attorney Garry L. Davis is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization.

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