It’s H-1B Season: How Do I Get the Process Started?
|March 7, 2012||Posted by admin under Business Immigration||
The U.S. Government allocates 60,000 visas per fiscal year for the H-1B specialty occupation visa program. An additional 20,000 visas are set aside for Master’s degree applicants.
The term specialty occupation is defined as an occupation that requires the theoretical and practical application of a body of highly specialized knowledge and attainment of a Bachelor’s degree or higher for that specialty. The government will accept the work equivalent of a Bachelor’s degree in the specialty. The H-1B program includes special rules for H-1B dependent or willful violator employers, and has provisions regulating the “benching” of employees, roving and short-term placement employees, and proper termination of employment.
The first step in the H-1B process is filing the Labor Condition Application (LCA). The H-1B employer signs the LCA thereby making four attestations to which the employer promises to abide relating to the payment of wages, working conditions, strikes / labor disputes and notice of the LCA filing. The employer must maintain a Public Access File and have the file on hand in the event that the government chooses that employer for a randomly selected audit. The second step is filing the H-1B petition itself. There are numerous documents which must be supplied to your attorney so that she or he may thoroughly prepare a strong H-1B presentation on your behalf. Employers may begin filing H-1B petitions on April 1, 2012, until the cap has been reached (unless cap-exempt). It is recommended that the employer file on April 1, 2012 if at all possible, since the cap fills up quickly in some years.
The H-1B visa is not for everyone. If you are no longer in a period of authorized stay after your last entry into the United States, you are not eligible to change your status to an H-1B. If you entered on a B-2 visitor visa and you worked for the employer who wants to petition for you while you were on the B-2 visa, then you are not eligible to change status because you have worked without authorization on the B-2 visa.
A more common scenario for initial applicants is where the H-1B applicant is an F-1 student visa holder who has been granted Optional Practical Training (OPT) and who has been authorized to work for a specific employer. As long as the applicant meets all requirements for the H-1B visa, his or her employer may apply. Dependents of H-1B visa applicants may apply for the H-4 visa, but should be aware that this visa category does not permit employment.