What is an H1B Visa ? - Overview:
The H1B Visa Program is the official and primary USA work visa / work permit.
The H1B is a non-immigrant visa in the USA under the Immigration & Nationality Act, section 101(a)(15)(H). It allows US employers to employ foreign workers, from all over the world, in specialty occupations.
The US Government introduced the H1B visa to provide highly skilled International Professionals and/or International Students, from all over the World, the opportunity to live and work in America.
The H1B is the most sought after US work visa and US Immigration requires 'every' foreign national to obtain a visa in order to legally work in America.
To Obtain an official H1B Visa :-
Step 1 - you must 'first' find an H1B Job with a US Employer ("sponsor")
Step 2 - your Employer files your H1B Visa Application with the USCIS
* individuals can NOT sponsor or apply for their own H1B visa. Only Your Employer can.
The H1B visa program is the primary method for employers to recruit & hire International professionals and International students to work in the USA. The H1B visa enables US employers to hire foreign professionals for a specified period of time. The H1B program allows workers in specialty occupations to work in the US for up to a total of six (6) years.
One of the things that makes the H1B so desirable is that, unlike many other nonimmigrant visa categories, it is a "dual intent" visa. This means that a visa will not be denied simply because a person has intentions to become a permanent resident. The assumption is that if for some reason the permanent residency petition is denied, the person would still have the intention to return home.
Aside from documenting that the position offered is in a specialty occupation and that the employee has the appropriate credentials for the job, the employer needs to verify that the H1B visa worker is being paid the prevailing wage for the work being performed and that employment of a foreign worker is not harming conditions for US workers.
H1B Visa Qualifying occupation categories are typically jobs in the fields of IT, Computing, Finance, Accounting, Banking, Marketing, Advertising, PR, Sales, Recruiting, Engineering (all types), Teaching, HealthCare/Medical, Legal, Lawyers, Networking, Telecoms, Business, Management, Scientific Research.
The length of time that a worker can have an H1B visa is usually an initial period of up to three years. The initial H1B visa can then be extended one time for up to a combined total of six (6) years.
Other regulatory provisions permit;
(1) the employer to request a period of less than three years,
(2) the employee to be employed on a part-time basis
(3) the employee to work for more than one US Employer simultaneously.
The H1B worker's family may also be permitted to live in the US during the period that the H1B visa is in effect, but can not be a paid employee while on an H4 visa. An H1B holders Spouse and children (under the age of 21) can move to and live in teh USA with the H1B holder - but they can not work unless they obtain their own work visa.
During the term of the H1B visa the employee can also apply for permanent residency. This is called "Dual Intent", and is a privilege some other U.S. visas do not enjoy.
The H1B Cap - quota of H1B visas issued each year
The number of H1B visas issued each year is subject to a cap that is determined by US Congress. The current H1B cap is set at 65,000 plus an additional 20,000 for International students that graduate with an MBA or higher from a US University.
The H1B cap does NOT include or affect:
1) current H1B holders transfering their visa to a new employer / sponsor
2) 'new' applications for an H1B with: non profit organizations, Government Research organizations, and institution of higher education.
* H1B Transfers and cap-exempt positions are Unlimted and available all year round for applications.
Basic Required Documentation for H1B visa
High School Diploma (only required if no college level of education has been attained.)
College diplomas (Associate, Bachelor, Master, Ph.D)
College transcripts/academic records
Certificate/diploma of training courses in IT
Evidence of license or professional membership in IT
Employment verification in the form of retrospective references (these must correlate with information in CV/Resume)
Current CV/Resume describing in detail employment history including: name & address of employer, job title, month/year commenced employment & month/year concluded employment, type of business, duties performed, full/part time.
Identity page in passport plus any pages evidencing current or expired US Visas
Documents to get H-4 VISA For the dependent of H-1B VISA holder
Passport
Copy of your Spouse H1B visa
H1B approval notice - Copy
Letter from the current employer
Marriage certificate (If spouse)
Marriage album (If spouse)
I-94 card
As an immigrant, when you arrive in the U.S., an arrival/departure record card is issued and placed in your passport next to your visa. This is called an I-94 card that permits a foreigner to be in the U.S. (as opposed to visa that provides the right to travel in and out of the U.S. in a certain status, eg. H1B visa status). The U.S. immigration official at the U.S. port of entry will review the foreigner's immigration documents (eg. H1B visa) and stamp the I-94 card with an expiry date consistent with the visa expiry. It should be noted that the immigration official has the power to limit a foreigner's stay irrespective of the visa expiration. The I-94 card is removed when a foreigner departs the U.S.
The Department of Labor states that the H1B law does not require employers to seek local talent before recruiting abroad for their US job openings, except in limited circumstances when the employer is considered H-1B dependent:
The DOL's [Strategic Plan http://www.dol.gov/_sec/stratplan/strat_plan_2006-2011.pdf], Fiscal Years 2006-2011 (pg. 35) states: "... H-1B workers may be hired even when a qualified U.S. worker wants the job, and a U.S. worker can be displaced from the job in favor of the foreign worker."
The [Federal Register http://www.dol.gov/esa/regs/fedreg/final/2006005740.pdf], dated June 30, 2006, Section II, paragraph 4, "the statute does not require employers...to demonstrate that there are no available US workers or to test the labor market for US workers as required under the permanent labor certification program."
Employers must attest that wages offered are at least equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the job in question, or alternatively, pay the prevailing wage for the occupation in the area of intended employment, whichever is greater. By signing the LCA, the employer attests that: prevailing wage rate for area of employment will be paid; working conditions of position will not adversely affect conditions of similarly employed American workers; place of employment not experiencing labor dispute involving a strike or lockout.
Prior to 2005, the law required H-1B workers to be paid the higher of the prevailing wage for the same occupation and geographic location or that which the employers pays to similarly situated employees. Other factors, such Age and skill were not permitted to be taken into account for the prevailing wage. Congress changed the program in 2004 to require the Department of Labor to provide four skill-based prevailing wage levels for employers to use. Employers using this system classify most workers at the lowest skill level. This is the only prevailing wage mechanism the law permits that incorporates factors other than occupation and location.
The law specifically limits the approval process of LCAs to checking for "obvious errors and inaccuracies." The approval process for these employer attestations simply amounts to the checking the form is filled out correctly.
The taxation of income for H1B employees depends on their tax residency: whether they are categorized as Resident Aliens or Non Resident Aliens for tax purposes.
If the substantial presence test indicates that the H1B visa holder is a resident, then income taxation is like any other USA person and may be filed using Form 1040 and the necessary schedules. Otherwise the visa holder must file as a non-resident alien using tax form 1040NR; he or she may claim benefit from Tax Treaties if they exist between the USA and the visa holder's country of citizenship.
Persons who are in their first year within the USA may choose to be considered a resident for taxation purposes for the entire year, and must pay taxes on their worldwide income for that year. This "First Year Choice" is described in IRS Publication 519 and can only be made once in a person's lifetime.
A spouse, regardless of visa status, must have a valid ITIN or Social Security Number in order to be included on a joint tax return with the H1B holder.
According to the USCIS, "H1B workers may only work for the petitioning USA employer and only in the H1B activities described in the petition. The petitioning U.S. employer may place the H1B worker on the worksite of another employer if all applicable rules (e.g., Department of Labor rules) are followed. H1B workers may work for more than one USA sponsor, but must have a Form I-129 petition approved by each sponsor (employer).
Worker protection and law enforcement
For every H1B visa petition filed with the USCIS, there must be included a Labor Condition Application (LCA) certified by the U.S. Department of Labor. The LCA is designed to ensure that the wage offered to the H1B non-immigrant worker must meet or exceed the "prevailing wage" in the area of employment. The LCA also contains an attestation section designed to prevent the program from being used to import foreign workers for the purpose of breaking a strike, or for the purpose of replacing U.S. citizen workers. Under the regulations, LCAs are a matter of public record. Corporations hiring H1B workers are required to make these records available to any member of the public who requests to look at them. Copies of the relevant records are also available from various web sites, including the Department of Labor.
Theoretically, the LCA process appears to offer protection to both USA and H-B workers. However, according to the U.S. General Accounting Office, enforcement limitations and procedural problems render these protections ineffective. Ultimately, the employer, not the Department of Labor, determines what source it will use to determine the prevailing wage for an offered position, and it may choose among a variety of competing surveys, including its own wage surveys, provided that such surveys follow certain defined rules and regulations.
Recent changes to USA Immigration and H1B Visa law
The American Competitiveness in the Twenty-First Century Act of 2000 (AC21) and the U.S. Department of Labor's PERM system for labor certification erased most of the earlier claimed arguments for H1B's as indentured servants during the green card process. With PERM, labor certification processing times have been reduced to less than 90 days.
Because of AC21, the H1B employee is free to change jobs if they have an I-485 application pending for six months and an approved I-140, if the position to which they are moving is substantially comparable to their current position. In some cases, if those labor certifications are withdrawn and replaced with PERM applications, processing times will improve, but the person will also lose their favorable priority date. In those cases, employers' incentive to attempt to lock in H1B employees to a job by offering a green card is reduced, because the employer bears the high legal costs and fees associated with labor certification and I-140 processing, but the H1B employee is still free to change jobs.
However, many people are ineligible to file I-485 at the current time due to the wide-spread retrogression in priority dates. Thus, they may well still be stuck with their sponsoring employer for many years. There are also many old labor certification cases pending under pre-PERM rules.
On May 25, 2006 the U.S. Senate passed immigration bill 2611 which contained several increases in the number of H1B visas, including:
- raising the base quota from 65,000 to 115,000,
- Automatically increasing the base quota by 20% whenever it is reached with no provision for lowering it,
- Adding 6,800 visas for trade agreements separate from the base quota,
- Adding 20,000 visas for those with foreign graduate degrees,
- Raising from 20,000 to unlimited the number of visas for those with U.S. graduate degrees, and
- Making visas to non-profit organizations exempt from the quota.
However, as the House refused to consider the measure, it died in conference and no H1B increase was approved in time for the elections.
The USCIS has announced that after completing a policy review that it was clarifying that to avoid H-1B quota limits, individuals who spent one year outside of U.S. and did not exhaust their entire six year term can choose to be re-admitted for "remainder" of initial six-year period without being subject to the H1B visa cap.
The USCIS has also announced that after completing a policy review that it was clarifying that "any time spent in H4 status will not count against the six-year maximum period of admission applicable to H1B workers.
On May 24, 2007, the Senate considered amendments to the Comprehensive Immigration Reform bill (S. 1348) including the Sanders Amendment to increase the H1B Scholarship & Training Fee from $1500 to $8500 (for H1B employers with more than 25 full time employees). The additional fee was to be used for training and scholarship programs and in addition to other existing fees. Senator Sanders listed the Teamsters Union and the AFL-CIO among supporters of his amendment. Without this amendment, Senator Sanders (I-VT) said, "skilled middle class and upper middle class Americans" would be hurt, and their wages would continue to be suppressed. Just prior to the vote, Senator Sanders announced that he had made changes to his amendment, dropping the fee for H-1B visas from the $8500 he proposed earlier, down to $5000. Following Senator Sanders' announcement, Senators Kennedy and Specter expressed their support for the bill and the amendment passed by a vote of 59-35. Compete America, a coalition of U.S. tech companies, reported the passage of the Sanders amendment will "accelerate outsourcing and undermine U.S. economic growth."
H1B Visa Resources and Links:
http://www.H1Base.com - H1B visa information, resources, employment and filing services
http://travel.state.gov/visa/temp/types/types_1271.html - US Dept. of State for H1B information
http://en.wikipedia.org/wiki/H1B_visa - H1B information overview
http://www.uscis.gov/portal/site/uscis - US Governments Immigration site
