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H-1B Visas: What You Need to Know

By - Source: Toms IT Pro

Many IT professionals find work in the U.S. through an H-1B visa. Find out what you should know about this visa and who is eligible.

Credit: ShutterstockCredit: ShutterstockWhat Is an H-1B Visa?

The H-1B visa enables businesses to hire people with special and much-needed skills from outside of the U.S., on a temporary basis. It only applies to those with highly specialized knowledge and skills. For instance, H-1B visa applicants must hold a bachelor's degree or higher, or the equivalent, in a related specialty.

Who Is Eligible for an H-1B Visa?

In lieu of that formal education credentials, to be eligible for an H-1B visa, a worker can have extensive work experience. Three years counts as one year of education. Also, the job for must fall under the special occupation category. Science, mathematics, technology, engineering and businesses fields frequently qualify as a specialty occupation.

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Workers must be able to expect a reasonable or prevailing salary or wage, as defined by the U.S. Department of Labor and set according to occupation and geographic location. And for each element of these requirements, workers must be able to provide documented evidence. That evidence must clearly explain, in detail, how each piece demonstrates, establishes or supports your petition for approval for the H-1B visa program.

How Does the H-1B Visa Cap Work?

The United States has a numerical cap on the number of H-1B visas it can issue in a single year. As of 2017, this cap stands at 65,000. This cap is usually filled rapidly, so it's essential that prospective applicants plan well in advance.

In addition to the 65,000-visa cap, up to 20,000 visas can be issued in a single year for holders of master's degrees who also meet the other eligibility criteria. Interestingly, a potential H-1B worker who is petitioning for a role at an institution of higher education or an affiliated non-profit entity are not counted within the standard numerical cap. Neither are applicants pursuing roles at non-profit research organizations or governmental research organizations.

What Is the Application Process for an H-1B Visa?

The application process starts with the employer completing a Labor Condition Application (LCA; Form ETA-9035) along with a Petition for a Non-immigrant Worker (Form I-129). Employers then send these forms to the U.S. Department of Labor. Once it certifies the LCA, the petitioning employer files the completed Form I-129 and the certified LCA with United States Citizenship and Immigration Services (USCIS). At this point, all parties wait for the petition approval. Once Form I-129 is approved, the foreign prospective worker then applies for an H-1B visa to the U.S. Department of State at a U.S. embassy or consulate. The worker must also apply to United States Customs and Border Protection for entry into the United States under the H-1B classification.

Can You Change Your Job After Getting an H-1B Visa?

The H-1B visa is employer-specific and position-specific. If you were to begin working for another employer, you would be in breach of your visa conditions. Therefore, if you wish to change your job, your potential new employer would have to petition for a new H-1B visa for you, and you'd have to start the application process all over again. Because the visa is also position-specific, your H-1B employer cannot significantly change the position or the duties that accompany the position for which you were employed. So, if your employer decides they want to make changes to the terms of your employment, change your duties, or move you to a new position, they must apply to amend your H-1B.

How Long Does an H-1B Visa Last?

The initial H-1B visa period is three years. After this time, employers may request extensions in one year increments up to a total of six years. After the six year limit, a worker must leave the United States for a year or more before they become eligible for readmittance on a new H-1B visa.

If, however, the worker spends documented time outside the U.S. during the H-1B visa period, this time can be recaptured as it does not count toward the six-year period. If the worker has a pending Permanent Residency petition, they may be entitled to extra H-1B extensions outside the six-year limit.

What About Spouses and Dependents of H-1B Visa Holders?

If you hold an H-1B visa, your spouse and children under 21 are eligible for H-4 visas, which allow them to stay in the United States while you are the beneficiary of an H-1B visa. In some instances, spouses holding an H-4 visa are allows to accept certain types of employment and can obtain a social security number.

Social security numbers and employment authorization are not available to all H-4 visa holders, although they are all eligible to obtain a driver's license and an Individual Taxpayer Identification Number. The H4 visas are valid for the duration of the spouse's H-1B visa. Family members may also enter the U.S. under another visa, such as the F-1 (student) category, if they meet the eligibility requirements. They may also apply to change their status while holding a valid H-4 visa.

What Are the Recent Changes to the H-1B Visa Program?

There have been a number of changes recently put into effect, with more, pending a full review of the program, planned. The review plans to identify better, fairer methods of issuing the visas, rather than the lottery system that is currently used.

The reform will target companies relying heavily on H-1B visas that unfairly exclude or discriminate against U.S. workers. Originally, the H-1B visa was to bring in foreign workers who had skills that could not reasonably be found within the United States, and the continued changes to the program will help to ensure that remains the case.

Technically and legally, employers cannot exhibit discrimination against U.S. workers in favour of H-1B visa holders, and the planned changes to the visa program, which include more stringent and rigorous application vetting, should significantly reduce attempted visa fraud.

An email helpline has also been launched to make it easier and less intimidating for anyone to report a suspected case of H-1B visa fraud. 

Additionally, USCIS has temporarily suspended all premium processing for H-1B petitions in an attempt to reduce over-all processing times. During the suspension period, USCIS plan to process long-pending petitions and deal with the adjudication of H-1B extension petitions that have been pending for close to 240 days.