H-1B Visa (Professional US Work Visa)

H-1B Visa

On June 22, 2020 a presidential proclamation suspended the issuance of new H-1B visas through the end of 2020. 

  • The proclamation does not apply to those who already hold valid H-1B visas, who, with a valid petition, may continue to travel to the US, providing they are not entering within 14 days of being in Europe (incl. the UK and Ireland), Brazil, China, or Iran;
  • The proclamation does not apply to those changing, porting, or extending status to H-1B in the United States;
  • The proclamation does not apply to any alien who is the spouse or child of a US citizen;
  • The proclamation does not apply to any alien seeking to provide temporary labor or services essential to the United States food supply chain;
  • The proclamation does not apply to an alien’s entry which would be in the national interest, such as: defense; aliens involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized; are involved with the provision of medical research at United States facilities to help the United States combat COVID-19; or are **necessary to facilitate the immediate and continued economic recovery of the United States**

As an alternative to the H-1B, certain multinationals may meet the nationality and ownership criteria of the E-1 and E-2 categories, and source employee visas through those classifications.

H-1B visa classification is a route for foreign job applicants with a proffered position in the United States, within a specialty occupation, to temporarily relocate and work for a H-1B sponsor, accompanied by their dependent spouse and minor children.

Sponsoring foreign job applicants for H-1B work authorization within a petitioning US company enables an employer to access a global pool of talent to compliment their American workforce, and as such is a very popular and over subscribed visa category. Indeed, because of this popularity and to protect American jobs, H-1B visas are subject to an annual numerical cap of 65,000 per fiscal year; October 1st to September 30th. H-1B visas become available on October 1st each year, and employers may file their H-1B petition six months prior to the start of the fiscal year: April 1st.

The conditions and requirements of the H-1B visa classification are commonly confused by employers and prospective employees. At a glance, H-1B visa eligibility is based, among other things, on the following.

Job applicants

H-1B job applicants must:

  • Have completed a U.S., or foreign equivalent, bachelors or higher degree required by the specific specialty occupation from an accredited college/university; or
  • Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty; and if applicable
  • Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment.

The H-1B Job

The proffered position in a specialty occupation is a job which requires one of the following:

  • A bachelors degree or its equivalent as the minimum entry requirement for the job; or
  • The degree requirement for the job is common to the industry or, the job is complex or unique and that it can only be performed by an individual with a degree; or
  • The employer normally requires a degree or its equivalent for the position; or
  • The nature of the specific duties are so specialized and complex that the knowledge required to perform them is usually associated with the attainment of a bachelors or higher degree.

It is important to understand that relevant legislation does not set in stone a list of specialty occupations. Typical specialty occupations, as seen by the attorneys at Greenwood Hanlon Kendrick, are: accounting, architecture, computing, education, engineering, law, medicine, psychology et cetera. Contact our immigration attorneys today to discuss a specialty occupation.

Employers

The first thing for a US employer to consider when contemplating hiring a foreign employee is whether the H-1B category of visa is the most appropriate. Like all visa classifications the H-1B category of visa has its strengths and weaknesses.

As mentioned above, the H-1B visa category is subject to an annual numerical cap of 65,000 visas, which become available from October 1 each year. Yearly visa availability quickly becomes exhausted, with applications flooding in six months in advance, leaving employers unable to sponsor prospective foreign employees.

Alternatives to H-1B may include sending employees to the United States as E-1 or E-2 Employees, if the US enterprise is owned by a majority of nationals from a country with a qualifying treaty of Friendship, Commerce and Navigation, and E registered, meeting the appropriate requirements. See E-1 Trader Visa and E-2 Investor Visa. As well, L-1A or B may be an appropriate alternative, depending on your circumstances.

Should an employer decide on the H-1B route of sponsorship, the US sponsor must file a Labor Condition Application with the Department of Labor, defining the terms and conditions of the prospective employees contract, and the obligations of the petitioning sponsor. A US employer must attest to full compliance with all obligations set out in the application, including:

  • The employer will pay the foreign employee a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for your position in the geographic area in which the foreign employee will be working;
  • The employer will provide working conditions that will not adversely affect other similarly employed workers. At the time of the Labor Condition Application there is no strike or lockout at the employer place of business. Notice of the filing of the Labor Condition Application with the Department of Labor has been given to the union bargaining representative or has been posted at the place of business.

Non compliance with the Labor Condition Application can result in fines, bars on sponsoring foreign applicants, and other sanctions.

The attorneys at Greenwood Hanlon Kendrick provide full counsel throughout the H-1B process, including in regards to the filing of the Labor Condition Application.

As an overview, following approval from the Department of Labor, the sponsoring employer would need to file a H-1B petition to the US Government. Once the petition has been approved, the prospective employee would need to apply to a US Embassy for a H-1B visa, and travel to the United States to be admitted into the country under H-1B Classification for up to three years. This can be extended up to a maximum of six years. There are some exceptions to this rule, such as changing status to another category of non immigrant visa, or adjusting status to permanent residency, commonly referred to as a green card.

As a H-1B sponsoring employer, you will be liable for all government filing fees, and the reasonable costs of the return transportation if you terminate your employee before the end of their period of authorized stay.

See a recent article in The Register where one of the firm’s partners discusses H-1B Visas.