The Fine Print of H-1B Visas
The H-1B visa is essentially a pass allowing a duly qualified individual to live and work in the United States for a particular period. The visa has many other benefits, such as spouse and children accompaniment but requires a sponsor as well as full compliance with the requisites set by law for its formalization.
The H-1B visa has a few aspects that need to be clarified. These are the most common aspects of the visa that needs further discussion.
- The H-1B visa can be issued for an individual employee and be able to work in multiple sites in the United States. It is the sponsoring employers duty to enumerate the multiple sites the visa holder would be working at in the Labor Condition Application. The only exception would be short-term assignments in different sites within the same Metropolitan Statistical Area.
- Employment and contracting agencies are allowed to become sponsors for H-1B visas. The requirement though is that the sponsor must pay the prevailing wage for the individual employee, regardless if there is actual employment for the foreign worker.
- The total number of H-1B visas available for each fiscal year (starting October 1) would be 65,000. There is an additional 20,000 additional H-1B visas available over and above the given quota and are issued to individuals that have graduated from a U.S. higher educational institution with a masteral degree or have exemplary skills and work experience currently in demand. Research institutions and universities can also sponsor a H-1B visa for an individual regardless of the existing quotas, provided the individual has skills, education or experience well beyond the minimum requirements.
- Once the annual quota is reached for the issuable H-1B visas, the USCIS announces a cutoff date. The petitions filed before the cutoff date but after the quota date would be carried over to the next processing period, which is October the following year. Petitions submitted after the announced dates would be returned to petitioner employer without consideration.
- The current fees payable for the processing of a H-1B visa is set at US$190. Aside from the filing fee, a Fraud Prevention and Detection fee is assessed costing US$500. A further fee of US$1,500 is imposed for American Competitiveness and Workforce Improvement Act, for employers with a workforce of above 25 full-time employees. For employers with a workforce complement of less than 25 employees would be assessed US$750. A final fee for consular visa processing is imposed amounting to US$105 in local currency.
- The full processing time of the H-1B visa application would run between three and six months. This is dependent on the volume of petitions being processed in the USCIS Regional Service Center. There is a fast track processing system, called Premium Processing, which would require payment of an extra US$1,000. With Premium Processing, the petition would be decided upon within fifteen days from submission, unless further evidence is required from the petitioner.
- During the pendency of an H-1B visa petition review, an alien can enter the United States on a visitor visa or visa waiver. This may prove to be risky, as a petitioner can be accused of visa fraud or be found to be engaged in any form of work, which can effectively torpedo the H-1B visa petition.
- When the H-1B visa is issued, the sponsoring employer is not beholden to employ the visa holder for the full period of the visa’s effectivity. What is required though is that the sponsoring employer pays for the costs of the return to the country of origin of the visa holder, but not their dependents, should there be any that accompanied them under the H-1B visa.
- The dependents of H-1B visa holders that accompany the visa holder to the United States are not allowed to be gainfully employed in the country. In order to be legally employed, they need to obtain their own work visa based on their own qualifications. In the same vein, dependents are allowed to study in a educational institution in the United States.
For more information about the basics of an H-1B visa, please contact or schedule a consultation with one of our immigration attorneys.
