Oct
16
Isaac Update- October 2008
Filed Under ISAAC Updates
H1B Visa- What is it?
As a general matter, people enter the United States as either as refugees, asylum seekers, immigrants, or non-immigrants. The first three categories enter with an intention of making the United States their permanent place of residence. The non-immigrant, however, generally comes for a specific temporary purpose. Work visas are a good example. The H1B visa is a type of work visa that is granted to individuals who engage in “specialty occupations” or unique jobs.
“Specialty occupations” require “the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher for entry into the field.” This can be engineers, computer programmers, or other highly technical fields. The H1B category is pretty diverse as well because it also includes specific categories for individuals that provide service to the Department of Defense and fashion models.
A potential employer must petition the U.S. Department of Labor (DOL) for a particular H1B immigrant and agree to be their sponsor. The potential employer must prove to the satisfaction of the DOL that “there are insufficient qualified U.S. workers available and willing to perform the work at wages that meet or exceed the prevailing wage paid for that occupation in the area of intended employment.” The potential employer must also attest to the DOL that:
- It will pay a wage no less than the wage paid to similarly qualified workers or, if the wage is greater, it will pay the prevailing wage for the position in the particular geographic area where the position is located;
- The employer will provide working conditions that will not adversely affect other similarly employed workers;
- The employer does not have a strike or lockout at its place of business; and
- The employer has posted the DOL filing at its place of business or given notice to any collective bargaining representative.
The failure of the employer to comply with the above can lead to fines and other penalties.
H1B visas are currently limited to 65,000 nationwide. Given the great demand for certain specialty workers, the fiscal year 2008 visa quota was reached six months prior to the start of the fiscal year (October 1). The H1B visa is valid for three years and can be extended up to a total for six years. If the H1B visa holder is dismissed prior to the expiration of his/her visa term, the employer must pay the “reasonable cost” of the employee’s transportation abroad. The H1B visa holder may also change employers but it will require a new application by his/her prospective employer.
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