Nuts & Bolts of H-1B Nonimmigrant Workers - Articles

All Content


Posted by: Christy Gibson on Mar 19, 2013

By Terry L. Olsen *

     The H-1B visa is a nonimmigrant visa in the U.S. that is available to college-educated professionals.  The purpose of the H-1B visa is to help U.S. employers temporarily hire nonimmigrant individuals who have the qualified skills and abilities for the available position.  The available position’s specific duties must be so specialized and complex so that the knowledge required performing the duties is associated with the attainment of a bachelor’s degree or higher.

     The nonimmigrant worker is required to have 4 years of undergraduate education; thereby, a bachelor’s degree or its equivalent.  The H-1B program allows U.S. employers to temporarily employ foreign workers in a specialty occupation, which must be in the same field as the foreign worker’s bachelor’s degree.  In terms of the duration of the H-1B status, the H-1B status and/or visa is granted initially for a period of 3 years, and can be extended for another period of 3 years for a total of 6 years.  For foreign nationals being petitioned for the first time, there is an H-1B cap which allows for 65,000 H-1B per year to be issued.  Also, 6,800 are set aside for the H-1B program under the terms of the U.S.-Chile and U.S-Singapore Free Trade Agreements.  There is also an H-1B Masters Cap Exemption for nonimmigrant workers with U.S. master’s degrees or above which is 20,000.  However, if one is employed at a university or equivalent research institution, the 65,000 cap does not apply.

     It is the petitioner’s/employer’s responsibility to obtain a certification of a Labor Condition Application (LCA) from the Department of Labor (DOL).  This application includes certain attestations, a violation of which can result in fines, bars on sponsoring nonimmigrant or immigrant petitions, and other sanctions to the employer.  The LCA requires the employer to attest that it will comply with the following labor requirements: 1) the employer will pay the beneficiary a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for your positions in the geographic area in which the nonimmigrant worker will be working, and 2) the employer will provide working conditions that will not adversely affect other similarly employed workers.  In the event an H-1B nonimmigrant worker is dismissed from employment prior to the end of the authorized stay requested by the employer, the regulations require the employer pay reasonable costs to return the nonimmigrant worker to his or her last place of residence outside the U.S.

     In terms of the H-1B packet, the following documents are required: 1) the H-1B petition, 2) an approved LCA from the DOL, 3) documentation that the job qualifies as a specialty occupation, 4) a copy of the individual’s U.S. degree and/or a foreign degree with evidence that it is equivalent to a U.S. bachelor’s degree or higher, 5) a copy of any required license to practice the occupation in the state of intended employment; and 6) other pertinent documentation relating to the H-1B petition.  

     Overall, the H-1B visa is meant to assist U.S. employers hiring nonimmigrant workers who have skills and abilities that are associated with an individual possessing at least a bachelor’s degree or higher.

_________________________

*Terry L. Olsen formed his immigration law practice, Olsen Law Firm, in Chattanooga, Tennessee in 2003. He received his B.A. degree in English from the University of Tennessee at Chattanooga, a M.F.A. in Creative Writing from Southern Illinois University, and his J.D. from the William and Mary School of Law. Mr. Olsen counsels individuals and companies of various international backgrounds with immigration matters, as well as assisting with religious worker issues, nurse immigration, national interest waivers, and permanent residence obtained through marriage to a U.S. citizen. He is an adjunct professor at Bryan College for its MBA program and has given immigration law lectures to international students and advisors at a number of local universities.