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H1B Visa in a Nutshell


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 used.

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.

The 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.  





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