H1B Visa in a
The H1b visa is often used as
the "next step" after one graduates from a university
after completion of a F-1 or J-1 program. It enables H1b holders to
remain and work in the U.S. for a total of 6 years. Time spent in
the L-1 visa as an executive, manager, or specialty occupation
worker counts toward the 6 year limit. Extensions
beyond this period of time are not possible.
Reserved for "specialty
occupations", the petitioner seeking an H1b must establish
that the job requires the services of a professional, that the
foreign worker qualifies as such a professional, and that a labor
condition application has been certified by the Department of Labor.
Generally, the H1b visa is available for those workers who have a
bachelor's degree in a technical field who will be working in a
technical position that requires an undergraduate degree.
Individuals who do not have
an undergraduate degree may utilize their experience to compensate
for any years unfinished in their undergraduate education.
To protect the salaries of
foreign nationals, employers are required to pay the higher of
either the actual or prevailing wage. The actual wage is the wage
paid to other co-workers in similar positions; the prevailing wage
is the average salary paid to workers in the area of intended
employment. The prevailing wage is often obtained through a request
to the employment economic agency in the employer’s state.
However, other sources of prevailing wages are permitted and may be
As part of the H1B
application process, the employer must make certain promises. In
addition to promising to pay the higher of the prevailing or actual
wage, the employer promises that hiring an H1B worker will not
adversely affect other co-workers. Furthermore, the employer attests
that it will take certain action in the event of a strike or lockout
and that it has provided adequate notice to other workers about its
hiring a foreign national.
final step of the H-1B petition process involves submitting the
package to the INS. The INS normally takes about 2 – 4 months to
process, review, and adjudicate an H-1B petition. Since there are a
limited number H-1Bs available each year, timing is important, and
the foreign national should be sure to apply for an H-1B early
enough so that his petition will not become subject to the cap. If a
petition does not make it within the annual allotment, he will have
to wait until October 1, for the INS to resume processing for the
following fiscal year.
Heavily used by the IT industry,
many H-1B applicants are computer programmers, engineers, analysts,
etc. The H-1B visa has the interesting characteristic of
permitting dual intent. Unlike many other visas, a holder of an H-1B
visa may intend to be in the U.S. for a temporary and permanent
period of time. Thus, during the duration of their H-1B visa, many
individuals apply for a green card and hope to adjust their status
to become a permanent resident.