Nonimmigrant (Temporary) Visa H-1B

 

 

Employees In Specialty Occupations: H-l B

 

Purpose

This visa is for professionals in specialty occupations who are coming to the

United States to work in their fields of expertise.

 

Eligibility:

You are eligible for an H-l B visa if you have at least a bachelor’s degree in the specific field in which you will be working—or whatever the minimum educational requirement is for the job—and you also have both the theoretical and practical knowledge for applying your highly specialized skills. If you do not have a degree, you will be considered eligible if you have the experience equivalent to the attainment of higher education as well as professional recog­nition in your field. The INS uses the simple formula of allotting one year of higher education to three years of experience. So, if your peers need five years of college to qualify in their “specialty occupation,” you will be eligible with 15 years of practical experience and/or professional recognition. Most of the professions are covered in this category as is professional modeling, although the latter is not considered a specialty occupation. You will be expected to have your university degree evaluated in the United States by an organization that is qualified to do so. The names of organizations that evaluate foreign university degrees or certificates for foreigners coming to the United States on nonimmigrant visas that permit employment based on professional qualifica­tions or on similarly-based employment-linked immigrant visas is supplied in Appendix 7 (see page 270). Unlike most other nonimmigrant applying for visas to enter the United States, you will not need to maintain a foreign resi­dence, although your intention should still, theoretically, be to leave the United States once you have completed your job. The job itself can be perma­nent, but you must be coming to work in this job on a temporary basis.

 

Special Limitations and Conditions:

Before you or your employer is able to petition for an H-l B visa, your employer must have filed a “labor condition application” (LCA), or labor attestation, with the Department of Labor (DOL). This LCA must state how many foreign employees are being recruited, the occupational classification of each, and their wage rates and working conditions. Your employer must guar­antee that you will be paid the higher of the actual or prevailing wage for your position and that other nonimmigrant employed in similar positions will be paid at the same rate. Your employer will also have to undertake that working conditions will be the same for both foreign and United States workers and that there are no strikes or lockouts in progress. Other staff members or union officials must have access to this LCA prior to petitioning for a foreign worker and they are at liberty to complain to the DOL if they feel that the employer is not revealing the true picture or is not meeting the conditions stated. If the DOL finds that an employer willfully and knowingly failed to comply with the LCA requirements, they are subject to a fine of up to $1,000 for each violation and may be prevented from recruiting foreign employees for 12 months or more. Also, if an employer has been underpaying you, the DOL can instruct him/her to raise your salary and award you back pay. The DOL is required to decide on an LCA within seven days of filing. If it does not approve an LCA, the INS will not suspend or revoke an approved H- l B petition. However, the employer must agree to meet the requirements of the LCA for as long as its foreign employee works there.

 

If you come to the United States to work for an employer on an H-l B visa and the employer dismisses you prematurely, this employer will have to pay the “reasonable costs” for your return transportation abroad. If you leave your job, you cannot expect your employer to pay such costs, nor will your employer be liable to do so. If you are dismissed, you will be expected to lodge an official written complaint with the regional service center of the INS where your H- l B petition was approved and they will instruct your employer to pay these costs.

 

If your employer does not pay these costs, he/she will not be fined, but could be jeopardized in any future petition applications for other foreign workers. Your H-l B visa only allows you to work for the employer who peti­tioned on your behalf. Therefore, if you leave your job to work somewhere else, your new employer must submit another H-l B petition for you and you can only start working at your new job once your new petition has been approved.

 

Application Procedures:

Obtaining Labor Condition Application (LCA) Approval (Labor Attesta­tion): Your employer has to submit an LCA to the Department of Labor out­lining all the conditions described above. Once this has been done, he/she can proceed to the next step and submit a visa petition on your behalf. Recent changes to the law make it possible to petition for a visa before the DOL has approved an LCA as long as employers can prove they have submitted it. This is also known as labor attestation.

 

Obtaining an H-l B Petition: You must submit to the INS proof of an LCA submission, together with form 1-129-H and all the documentation required to prove the bona fide credentials of your company and your ability to fulfill the requirements of the specified job. This will require a validation of your university degree or other educational certification to show that your aca­demic credentials meet the United States professional standards for the given job, based on the appropriate United States equivalent qualifications. There is a filing fee of $70.

 

Applying for an H-l B Visa or Status: You must submit your approved

1-129-H Petition, which is Form 1-797, or Notice of Action, together with either another 1-129 form, to request change in nonimmigrant status and a fil­ing fee of $70, or form OF- 156, if you are applying for a nonimmigrant visa abroad. In addition, you must supply your personal travel documents, appro­priate forms, as well as your personal credentials supporting your application. Visas are usually granted for a total of six years: an initial period of three years, with another three years available as extensions of stay. A maximum of 115,000 H-l B visas will be issued annually to those in specialty occupations who qualify in terms of the criteria for eligibility described above.

 

Other Considerations:

Dual Intent: If you apply for labor certification in support of an immigrant visa application while on an H-l B visa and you travel outside the country, you will not be prevented from returning on H-l B status because the rule of dual intent has been applied to this visa category. Nor are you required to maintain a home abroad when you apply for this visa.

 

 

Immigration updates:

 

                (SOUTHFIELD)  Senator Spence Abraham is the target of new smear

                advertising blitz by the anti-immigrant hate group FAIR or Federation for

                American Immigration Reform.  The group is spending almost $150,000 on

                radio ads in Detroit falsely accusing Abraham of sponsoring legislation that

                would "give foreigners American jobs."

 

                By definition the jobs that foreign-born professionals fill are unfilled or newly

                created positions, so the claim of "taking" American jobs is demonstrably

                false.  Not only is it unlawful to pay an H-1B visa holder less than a

                comparable American --- but any employer that lays off an existing worker

                and replaces that worker with an H-1B professional it pays less than the

                prevailing wage, faces substantial fines and a 3-year debarment from using

                any immigrant visas.

 

                FAIR made the same allegations when the 1998 bill was enacted and they

                have been proven spectacularly wrong.  The U.S. economy added 387,000

                new jobs in January and the unemployment rate dropped to a 30-year low of 4

                percent.  Specialty jobs in the computer industry alone are projected to grow

                by 1.5 million between 1998 and 20008, according to the U.S. Department of

                Labor.

 

                Of course FAIR is not concerned by the facts, but is a notorious

                anti-immigration group with a long history of dedicating itself to excluding from

                our society individuals based solely on their national origin.  John Tanton, the

                founder of FAIR and a Michigan resident, has compared immigrants to a form

                of "bacteria".  Moreover, FAIR has received $1 million from the White

                Supremacist foundation the Pioneer Fund, which favors eugenics and "race

                betterment."  (See "Ten Things Every American Should Know About FAIR.")

 

                Senator Spence Abraham is a co-sponsor of the American Competitiveness

                in the 21st Century Act (S.2045), a bill designed to make U.S. high-tech firms

                more competitive and to create thousands of new jobs for American workers

                by increasing the amount H-1B visas.  It would also prevent U.S. firms from

                moving overseas to find the talent they need to grow their businesses.   This

                bipartisan bill was approved by the Senate Judiciary Committee by a vote of

                16 to 2.  Both the Detroit Free Press and the Detroit News have written

                editorials endorsing Abraham's legislation.  Federal Reserve Board Chairman

                Alan Greenspan has also spoken out in favor of the legislation to increase

                H-1B visas.

 

                Numerous studies show a severe shortage of skilled and even unskilled labor

                exists today. A February 2000 survey by Manpower, Inc. found that a

                shortage of workers "continues to plague companies in all industries and

                geographic regions" of the United States.  Help-wanted classified ads in

                almost any newspaper in American also confirm these studies.

 

                The Department of Labor's figures project that our economy will produce more

                than 130,000 information technology jobs in each of the next 10 years, for a

                total of more than 1.3 million.  But the data also suggest our universities will

                produce less than a quarter of the necessary number of the information

                technology graduates over the next 10 years.

 

                The bill Senator Abraham is supporting will provide nearly a half-billion dollars

                for training U.S. workers and provide scholarships for over 40,000 American

                students, including right here in Michigan.  It will also allow companies

                address their immediate problem by temporarily increasing the number of visa

                allotments for skilled professionals to work in the U.S. and fill these vacant

                positions.

 

                The American Competitiveness in the 21st Century Act includes the following

                key components:

 

                     Temporary Increase in Visa Allotment for Skilled Professionals.

                     In addition to the number of H-1B visas issued or individuals authorized

                     H-1B status, the bill increases the number by 80,000 for FY 2000,

                     87,500 for FY 2001, and 130,000 for FY 2002, for a level of 195,000 a

                     year.

 

                     Money for Education and Training. The additional visas will

                     generate more money for training and scholarships for U.S. workers

                     and students through the $500 per visa fee that originated in the 1998

                     legislation. That will raise $450 million total over three years, creating

                     40,000 scholarships and training thousands of individuals.

 

                     Assistance for American Universities and Research Facilities.

                     Creates exemptions from the cap for universities, research facilities,

                     and graduate degree recipients to help keep in the country top

                     graduates and those who help educate Americans.

 

                     Increased Enforcement. Maintains the increased fines, attestations,

                     increased DOL investigative authority and other enforcement measures

                     passed into law in 1998 and extends the provisions through FY 2002.

                     Mandates that visas found to have been issued fraudulently be

                     returned to the pool of visas for that fiscal year.

 

 

 

                Senator Abraham is keeping jobs in America. Susan DeFife, CEO of

                womenCONNECT.com testified before the Senate Immigration Subcommittee

                that "in order to fill these positions, the options for tech companies are not

                particularly attractive: we can limit our growth, but then we lose the ability to

                compete; we can 'steal' employees from other companies, which makes none

                of us stronger and forces us to constantly look over our shoulders; or, in the

                case of larger companies I know, move operations off-shore."