H-1B visa | Miami Lawyer Elizaveta V. Samorukova, P.A

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H-1B visa
Work visa application process

H-1B visas are subject to an annual visa cap each fiscal year; 65,000 new H-1B visas are available for overseas employees with at least a bachelors degree and additional 20,000 visas for those with a U.S. masters degree. Those who passed training in specialty occupation and became real professionals have priority.

If you need some assistance in obtaining a work visa in the United States, please review all important points which should be kept in mind to avoid any problems during the procedure of document obtaining.

Does the H-1B visa have any advantages and what advantages are they?

After you have been granted the visa, you get a labor permit in the USA. It’s an excellent line in your resume, isn’t it?
You have the right to income, the income from a foreign employer.
You are allowed to stay abroad for quite a long time: a US work visa allows total stay to 6 years, initial approval is for 3 years with one possible additional three-year extension.
Spouses and unmarried children under the age of 21 of H-1B visa holders are considered dependents eligible for H-4 status and are not permitted to work in the U.S. Children may attend any school or college in the USA.
Each potential employee can file several visa petitions for gaining visa to work for several employers during the same time period. This option is for those who are able to perform a couple of tasks simultaneously and swiftly shift from one activity to another.
If your employer files the petition for permanent job to you, then you can apply for permanent residency in the US to receive a Green Card.

Requirements to a petitioner

An individual, who expects to be granted a work visa in the USA, should meet a number of requirements. All of them should be considered before planning to move abroad.

Among them are the following: Specialty occupation. If you are arriving in the USA to perform services within a “specialty occupation”, then your concept of such services is expected to comply with the term proposed by the law: “Specialty occupation which requires (A) theoretical and practical application of a body of highly specialized knowledge and (B) a bachelor’s or higher degree (or its equivalent) in the specific specialty as a minimum for entry into the occupation”.
Education. The beneficiary worker must possess at least a Bachelor’s degree or its equivalent. The work experience in the relevant position is also taken into account (The formula is 3 years of professional work experience = 1 year of University). If the degree was obtain outside the United States, the USCIS may insist on verification of candidate’s compliance with all these requirements.
Employment. For obtaining a work visa there must be an employer in the United States offering the professional employment. The offer of employment may be for full or part time employment.
Licensure. Where licensure is required to practice a profession (for example, lawyers, chemists, nurses, etc.), the applicant must hold appropriate licensure under state law. It is important to have such document with you. You will be granted a work visa for a period of one year only (instead of 3 years as generally) for you to pass the relevant state licensing examination in the USA during this period.
Employer certification. The employer must file a relevant application with the U.S. Department of Labor and the USCIS. This is a guarantee of obtaining decent wages, the absence of strikes, the provision of a contract for an employee. By submitting such application the employer agrees to pay transportation cost if the employer terminates employment prior to the end of the authorized employment.
Approval of the petition by the USCIS. This is the most important point. If the petition is not approved, you will not obtain a visa.

“Complicated” applications.

Though there are situations when you cannot be granted a visa, even if all the required documents are collected. This is particularly related to specialists involved in the defense industry; if you are such an employee, the application will be considered by the State Department in Washington.

The reason for such delay is simple: national security issues.

Your application is considered «complicated» one if you are suspected of providing false information. Then, a consular officer is more likely to check your record or contact the USCIS to make sure that the particular employer really intends to hire you.

H-1B visa procedure.

To apply for a work visa in the United States, firstly, you need to find a suitable employer, a person who can provide you with a job and also takes a serious interest in you as a specialist. Skilled experts are worth their weight in gold in any country, so there is every possibility that an American employer will be found quickly.

Then the employer, if he intends to hire you, files for a H-1B petition with the US Department of Labor, as well as with the USCIS to allow you to get a job. Documents preparation should be started in January-February, since the final package of documents must be submitted on April 1. If the USCIS receives more petitions than a quota, they will use a computer-generated random selection process (lottery) to select a sufficient number of petitions needed to meet the cap.

Documents, of course, if they are selected by lottery, are transferred to the USCIS, where they will be considered for several months until the visa is approved.

Then, if the USCIS has no objection to your arrival in the US, you can get an H-1B visa at the US embassy in your home country, with the validity date of October 1, and arrive in the USA to work.

What documents are to be submitted by an employer?

A specific feature of a work visa is that you cannot obtain this visa if the employer does not submit all the necessary papers. You cannot just move to America to earn money, you must be invited there.

The following documents should be submitted by an employer:

Form I-129 – it is the petition for a nonimmigrant worker; check for payment of all fees;
Form I-907, if the petitioner wishes to request for premium processing (accelerated process);
Form G-28, if the petitioner is obtaining attorney representation or H-1B lawyer;
Form ETA-9035, which is to be obtained in the Department of Labor;
SEVIS Form I-20, if a potential employee is a student;
a document, certifying that the potential employee has an appropriate education (diploma (s), confirmation of equivalence);
a letter from the employer’s company representative, confirming the intention to hire an immigrant, and a description of his/her upcoming duties;
any other necessary papers which will be required.

Can only an employer apply for a visa?

Yes, only the employer can submit all necessary documents, so the potential employee has no freedom of action until a certain moment.

The only thing would be required from you to be a professional who really should be hired. If an US employer sees that he needs you, even complicated paperwork will not stop him from transferring such a valuable employee.

Restrictions.

Obtaining a work visa in the United States for Russians and other foreigners is not only advantages, but also restrictions.

You cannot work until your visa is approved. Any work in the territory of a foreign country without special permission for it is considered a serious law violation. So it is more reasonable to act in compliance with law.

You can change your employer only after getting USCIS approval to change your job and working conditions.

You should remember about the quota that is annually imposed on new petitions. It also covers those who are going to extend their stay in the country or intend to change their employer.

Spouses and children are not permitted to work in the USA; as such permission is applicable only to H-1B holders.

If you only would like to know how to obtain a work visa in the USA, the above points will be useful for you. If you want to live and work permanently in the United States, H-1B visa will not help you. It cannot be exchanged for permanent residence; it can be extended for another three additional years, total stay is limited to 6 years. When the six year period runs out, you must leave the USA and work outside the US for at least one year before an application is made for you to enter on H-1B visa , then you can stay there for another six years.

If an employer is interested in applying for a residence permit for his valuable employee, this can be done while such employee is working in America as an H-1B holder. Obtaining an employment-based green card is quite a complicated process, since an employer must prove that this particular employee cannot be replaced by a US citizen.

What do you need to know about annual numerical limit or “visa cap”?

H-1B visa cap/quota is what you should take into account before starting paperwork process and your moving abroad. The H-1B visa has an annual numerical limit or “cap” of 65,000 visas each fiscal year. Citizenship of a potential employee does not matter.

The number of applicants many times has exceeded the limit during the last several years, so visas are granted on a lottery basis. If a foreign national does not get selected in the H-1B lottery, then he has to wait until April 1 of the next year, the new quota date, when he/she can submit the application to try and be selected again. Therefore, if you sent an application at the end of the summer, they are more likely to return it to you.