H1-B: Nature and Purpose
H1-B is a nonimmigrant visa programmend under the United States Immigration and Nationality Act (INA).
The law allows U.S. employers to hire foreign workers to work for a limited period in the United States in “specialty occupations,” However, President Obama ordered strict enforcement of the law to protect U.S. workers from work displacements.
H1-B Specialty Occupation defined
INA defines “specialty occupation” as those works requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor. Such field of expertise include the medical profession, education, enginnering, architecture, engineering, social sciences, health, law, accounting, arts, and similar others which requires a Bachelor’s degree or higher or its equivalent experience, training and skills in the given field.
H1-B: Opportunities and Privileges
With the flourishing family-based visa, the H1B visa has been the most common sought opportunity for foreign nationals to apply for a green card or permanent resident status. The H1B visa also allows the applicant’s spouse and children to come along and live in the states. The law gives the H1B visa a validity period of up to six years.
H1-B: US employer as the sponsor
It is a requirement that before a foreign applicant applies for H1-B visa, the US-based employer must first secure the appoval of the petition on behalf of the applicant. Prior to the filing of the petition, the employer must secure a Labor Condition Application (LCA) with the Department of Labor and prove that:
- There is no existing labor dispute, strike or lockout in the workplace;
- The hiring of a foreign worker(s) will have no adverse impact to existing U.S. workers in the workplace; and
- The employer undertakes to pay the foreign worker the prevailing wage applicable to the position.
The Employ American Workers Act (EAWA)
In an attempt to regulate the petition for a foreign worker, the U.S. Citizenship and Immigration Services (USCIS) introduced changes in the H1-B visa application process by requiring employers to submit an online petition with limited data and wait until the petition is chosen before the employer will be required to submit the remaining documentations and requirements. The establishment of EAWA in February of 2009 regulates the hiring of foreign workers and prevent displacements of American workers particularly those established under “covered funding” through the Troubled Asset Relief Program or pursuant to the provision of the Federal Reserve Act which imposes the following:
- To give priority to American workers or other immigrants authorized to work in the U.S.,
- To offer first the vacant position to any American employee who has the same or superior qualifications with the H1-B applicant;
- To see to it that the hiring of H1-B applicant will not displaced American employees working within the period commencing 90 days before the H1-B petition was filed and terminating 90 days following its filing; and
- To avoid reassigning H1-B employee to another employer unless the new employer has laid off workers or has plans to lay off U.S. employees within 90 days preceding or following the H1B worker’s placement.
To regulate the number of foreign workers entering the U.S., Congress placed a ceiling to the number of H1-B visas processed annually. In 2010, the quota was set at 65,000 visas per year in addition to 20,000 for foreign students who complete a master’s degree or higher from a U.S. university. Visa renewals will not be included in the given annual quotas.
H1-B visa help: Look for USA Citizenships
Considering the new regulations under the USCIS law, it is imperative that US employers will seek the advice of immigration attorneys. USA Citizenships is willing to discuss comprehensively the details of your H1-B petition to avoid conflicts and possible denial of your petititon. The USA Citizenships are available for consultation at www.usacitizenships.com or call (888) 940-0044 to schedule a meeting with our immigration attorneys.