Work Visa Work Visa (H1B): Answers to Frequent Questions

  1. People around the globe continue to seek employment opportunities in the United States. However, the work visa process is an extremely challenging and complicated process that usually takes about six months. Before you can successful obtain a work visa or "H-1B visa", certain U.S. visa requirements must to be met. Below are answers to many questions concerning the H-1B visa process.

    What is the H-1B visa or "work visa"?

    The H-1B visa is the U.S. non-immigrant visa that foreign citizens need to obtain before they can enter the United States to work in a specialty area on a temporary basis. The H-1B is also known as a "Temporary Employment Visa" and it requires at least a bachelor's degree. Compared with other visas, the H-1B is extremely complicated and the entire process usually will take approximately six months. All H-1B visa requirements specified by the USCIS must be met before approval is granted. The program will allow workers who qualify to stay in the U.S. up to six years and apply for a green card or permanent residency. Employers are generally reluctant to act as sponsors due to the cost, complexity and attestation requirements.

    What are the steps needed in applying for an H-1B visa?

    In general, the process of obtaining an H-1B visa follows the following steps:
    • The candidate must find an H-1B employer offering him or her a job (called the "sponsor")
    • The sponsor files the H-1B visa application to sponsor the candidate with the U.S. Immigration Bureau
    • If the application is approved by the U.S. Immigration Bureau, the candidate is eligible to work in the U.S.

    What will be needed by the U.S. Embassy?

    The worker candidate will need to have the following ready for the interview at the appropriate U.S. Embassy:
    • A completed application
    • Valid passport
    • Current CV / resume
    • Copies of all transcripts and degree certificates
    • Documentation for any applicable professional licenses
    • Reasonably good copy of the I-94 card
    • Full name, date and place of birth
    • Current address in the U.S., telephone numbers for work and home
    • Permanent address abroad (or address of parents)
    • U.S. Social Security number, if applicable
    • Copy of the I-20 authorizing training, good copy of EAD card
    • Copies of prior H-1 or J-1 notices
    • Employment verifications including reason for travel
    • Proof of financial status, and duration of employment offer
    • Proof of payment of the application fees

    This is not an all-inclusive list and the Embassy or Consulate may require addition materials and documentation before they will be able to process your application.

    How long does it take to get the H-1B visa after it is processed and approved?

    It usually only takes several few weeks after approval. However, there is no guarantee that approval will be granted even if there is a valid job offer.

    Who files the petition for the H1-B visa and what forms are needed? How much does it cost?

    The employer who is hiring the foreign worker candidate must file the petition using form I-129 (Petition for Non-immigrant Worker) and will also complete and sign the I-907 form. Employers must also file a labor condition application with the Department of Labor. This will entail giving details as to the wage and working conditions being offered to the foreign employee. As of 2009, a $500 dollar fee is required to be paid by the employer to the USCIS to sponsor the H-1B worker unless there is a legal exemption, in addition to $1,500 for the H1-B Education and Training Fee and $320 for the I-129.

    Are there different types of temporary work visas?

    Yes, there are many types and they each have different time allowances. The H1-B is for workers who specialize in certain specified fields.

    What qualifies as specialty employment?

    Employment fields that require workers to have at least a bachelor’s degree or equivalent work experience are considered specialty occupations. These jobs include the fields of mathematics, architecture, physical sciences, engineering, social sciences, education, health and medicine, business specialties, accounting, law, theology and the arts. An exception may be made for workers who only possess the "equivalent" of a bachelor's degree which would be at least 12 years experience in performing the specialty work.

    How long is the H-1B visa valid?

    It is valid for up to six years. The alien worker must then leave the United States. After a one year period, another H-1B visa can be obtained. There is an exception and that is for certain aliens who work on specific projects for the Defense Department. They may remain for up to 10 years.

    Once in the United States, who can employ the temporary worker?

    They are only allowed to work for the employer who petitioned for the visa. However, alien workers may be employed by more than one employer if each employer has filed the I-129 petition form.

    Can an alien worker with an H-1B visa quit one employer to work for another in the U.S.?

    Yes, but they can only work for other employers who have filed the H-1B petition and only after it is approved and it must be in one of the specialty fields. The new employer must file a new H-1B application and pay all applicable fees, which usually takes about 2-3 months. However, you may start to work for your new employer upon the filing of the H-1B with the USCIS.

    What happens if I am laid off or terminated?

    You will need to convert your visa to another non-immigrant status visa such as an F-1, F-2 or H-4 within the statutory grace period. You will be able to stay in the U.S. while your case is pending.

    Will the temporary worker status change if the employer sells his business?

    Not as long as the new owner keeps them working in the same specialty area that they were petitioned for. If the worker is put into another field, a violation of status will occur.

    Does the H-1B alien have to be a full time employee? Is status affected by being part time?

    Part-time employment is allowed as well as vacation, sick leave, maternity leave, strikes, etc that may affect the amount of time worked. The status will not change as long as they are still considered employees.

    Is travel outside of the United States allowed by the H-1B alien?

    Yes, the H-1B alien may travel outside the U.S. and re-enter as long as the H-1B validity and time period allow.

    What is dual intent by the Alien? Is it legal?

    The Immigration Act of 1990 recognized “dual intent” as being lawful. Dual intent is when the alien beneficiary of the H-1B visa enters the U.S. to work on a temporary basis but also intends to apply for an adjustment of status or take steps to become a Lawful and Permanent Resident of the United States. Having dual intent will not affect the H-1B status. Furthermore, travel in and out of the U.S. on the H-1B visa is allowed without the need for advanced permission.

    What is the H-1B “portability” provision? Who is eligible for it?

    The H-1B portability provision gives the H1-B visa holder permission to begin working for a new employer as soon as the new employer files a I-29 petition for them instead of waiting for it to be approved. The portability provision came into affect on October 18, 2000.

    What is an amended H-1B petition and who needs to file for it?

    Temporary alien workers needed to file an amended H-1B visa petition when the company they worked for was merged with another company, sold or consolidated into a new corporation. This is no longer required by law.

    How many H1-B visas are granted each year?

    Currently for 2009 the limit is 65,000 H1-B visas. It was temporarily raised from 2001-2003.
    Immigration Law:
    Work Visa, Sponsored (H1B, H4 Visa)

    Michael M. Wechsler

    Michael M. Wechsler
    Michael M. Wechsler is an experienced attorney, founder of TheLaw.com, A. Research Scholar at Columbia Business School and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.

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