An individual who is a citizen of another country that wants to enter the U.S. for an extended period will generally need to obtain some type of visa. This can be a non-immigrant visa allowing an individual to temporarily stay in the U.S., mostly for work-related purposes. It can also be an immigrant visa that grants an individual permanent residence in the country.
If you are a citizen of another country that wishes to live and work in the U.S. for a limited period of time, then you will need to apply for a temporary worker visa. There are currently eleven different categories for temporary worker visas. These categories are:
- H-1B Visa: Specialty occupations
- H-1B1 Visa: Also applies to specialty occupations, but specifically for qualifying Free Trade Agreement professionals from Chile and Singapore
- H-2A Visa: Temporary agricultural workers
- H-2B Visa: Temporary non-agricultural workers
- H-3 Visa: Individuals not able to get training in their own country or individuals in a special education training program
- L: Intracompany transferee where the person worked for a different branch of the company located outside the
- U.S. for at least one year
- O: Individual with extraordinary ability or achievement in various fields like the arts, athletics, or television
- P-1: Athletes or members of an entertainment group that are internationally recognized
- P-2: Artists or entertainers in a reciprocal exchange program
- P-3: Artists or entertainers performing something culturally unique or traditional
- Q-1: Individuals that are in an international cultural exchange program
Each of these visas has their own unique qualifications and application process. The first category listed for specialty occupations is a broader visa that many individuals seek when looking to temporarily live and work in the United States. Some examples of specialty fields for H-1B visas are science, medicine, architecture, and law.
However, so many more fields and occupations can apply. The individual just needs to possess technical and specialized skills at a higher level. This visa also has sub-categories that allow distinguished fashion models, U.S. Department of Defense project workers, and other government research development workers.
Who is Eligible for an H-1B Visa?
In order to be eligible for an H-1B visa, the following requirements need to be met:
- The individual needs to be a citizen of another country;
- A private U.S. employer or the government must hire the individual to work under that company’s supervision and control;
- The work must be for a qualified specialty occupation;
- The job needs to require a bachelor’s degree or higher degree and the individual must possess one or more of these degrees or an equivalent;
- The nature and specific duties of the job must be specialized and require complex knowledge;
- The job must be in a related field to the individual’s skill set; and
- The agreed pay needs to be at minimum the actual or prevailing wage that the employer would pay a U.S. citizen.
If all of these factors are present, then the application process can begin. However, keep in mind that the job cannot adversely affect wages or displace workers that are American citizens. This simply means that an employer cannot extend a temporary job to a U.S. worker and then lower the wage or fire a current employee who is a U.S. citizen based on hiring the foreign temporary worker.
What is the Application Process for an H-1B Visa?
There are three key steps in the process of obtaining an H-1B visa. The petition procedure involves both the U.S. employer and foreign temporary worker. The following needs to be completed:
- The U.S. employer acts as a sponsor for the potential temporary worker and applies for certification of a Labor Condition Application from the Department of Labor. This essentially means that the employer is attesting that it will comply with certain labor requirements. Failure to complete the step can result in the employer having to pay fines or being barred from sponsoring future immigrant and non-immigrant petitions.
- The U.S. employer needs to file Form I-129 with the U.S. Citizenship and Immigration Services (USCIS). This form is the official Petition for a Nonimmigrant Worker.
- The prospective foreign worker applies for their H-1B visa into the country with the U.S. Department of State. This step can be completed at a U.S. embassy or consulate located in the individual’s country of residence. This last step can only happen after the Form I-129 petition is approved.
After all of this is completed, the worker still needs to apply for admission into the country via H-1B classification. This application needs to be submitted to the U.S. Customs and Border Protection. Once the person begins work, they can stay for up to three years. An extension can be granted but this generally cannot go past six years total.
What Happens When the Temporary Employment Ends?
If the employer terminates the H-1B visa worker before the end of the authorized working period, then the employer will have to pay reasonable return transportation costs. However, the employer will not have to pay these costs if the worker voluntarily quits. For example, say you are a citizen of Poland that was granted a visa with H-1B status to stay and work for a U.S. employer for a period of 18 months. If the employer fires you on month 13, then they will need to pay your airfare and any other reasonable travel costs to return to Poland. However, if you quit on month 13 then you will have to pay for your travel fees to return back home.
Regardless, when the working period ends the foreign employee must notify the USCIS and leave the country, unless the visa is extended.
What are Some Other Important Things to Know About an H-1B Visa?
One common question about the H-1B visa is the length of time it will take to get this type of visa. It is important to know that there is no set time frame. Various factors will affect the process like how busy the U.S. agencies are and whether further investigation into the person’s background is needed. However, the time frame usually ranges from 2-6 months. As such, it is important to be proactive and get everything submitted and paid timely – especially if there is a quick need for the worker to begin. There also may be a premium processing option available to expedite the process.
Another important thing about H-1B visas is that there is an annual cap. Only 65,000 new visas can be issued each fiscal year. While there are some exemptions, most people will be subject to the annual cap so it is crucial to get the process completed in a timely fashion.
Do I Need to Hire a Lawyer to Help Me With the H-1B Visa Process?
Since there is a cap on H-1B visas and they are in high demand, an immigration lawyer could really help you ensure the process goes smoothly and have a better chance of getting a visa for the year you desire to work temporarily in the country. The process also can be complicated with a lot of steps, so a lawyer can help make sure everything is done correctly. Having this extra layer of protection could be the reason you are qualified in time to get a visa before the annual H-1B visa quota is reached.