Overview of H-1B visa
The H-1B visa is a highly sought-after program that allows U.S. employers to hire foreign workers in specialty occupations that require theoretical or technical expertise in a specific field. As the H-1B visa season approaches, it is an exciting time for employers looking to hire talented foreign workers.
The occupational categories available for H-1Bs are Architecture, Engineering, Mathematics, Physical Sciences, Social Sciences, Medicine and Health, Education, Business Specialties, Accounting, Law, Theology, and the Arts.
The regulations regarding what a specialty occupation are: (1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position; (2) The degree requirement is common to the industry in parallel positions among similar organizations, or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree; (3) The employer normally requires a degree or its equivalent for the position; or (4) The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
The INA allows an H-1B petitioner to request up to three years in an H-1B status and up to six years of total status. Once a beneficiary has been outside of the United States for one year, the person is eligible for six more years of H-1B time. That time may be recaptured incrementally versus needing to be continuous.
H-1Bs further have the advantage of being a “dual intent” nonimmigrant category. That is, an H-1B holder may have both a short-term intent to leave the United States and a long-term intent to remain permanently, and applying for permanent residency will not constitute evidence of an intention to abandon a foreign residence for purposes of obtaining an H-1B visa. H-1Bs can file for extensions of status while an immigrant visa petition is pending.
For small businesses, the H-1B visa offers a unique opportunity to expand their workforce and bring in highly skilled professionals from around the world. These employees bring with them a wealth of knowledge, expertise, and a fresh perspective, helping to drive business growth and innovation.
Working with an experienced immigration attorney
The H-1B visa process can be complex, and it is important for businesses to have a clear understanding of the requirements and eligibility criteria. Filing an LCA with the DOL is an example. In order to submit an LCA, an employer must first provide its Federal Employer Identification Number (FEIN) to the Office of Foreign Labor Certification for verification. The LCA (Form ETA-9035) contains specifics of the position, including title, start date, worksite location, the wage to be paid, and the prevailing wage for the SOC code and wage level that was chosen. The form is then submitted online, and the DOL typically certifies the LCA within seven business days. A certified and signed copy of the LCA is eventually submitted to USCIS as a part of the H-1B petition. Once certified, an LCA is valid for up to three years. An H-1B cannot be approved without a valid LCA, so mistakes on the LCA can be costly. Therefore, working with an experienced immigration attorney can help ensure a smooth and successful H-1B petition process.
In preparation for the H-1B visa season, businesses should start gathering all necessary documentation, including the prospective employee's educational and work history, as well as a detailed job duties and responsibilities, and proof of the job's specialty occupation status.
Businesses that are proactive and start the H-1B visa process early are in a better position to successfully secure a foreign worker. So, if you're a small business looking to expand your workforce and bring in talented foreign workers, now is the time to start planning for the H-1B visa season.
Don't miss out on the opportunity to bring in the best and brightest from around the world to help your business succeed. Contact us today to learn more about the H-1B visa program and how we can help you secure the talent you need.
What is the impact of the recent layoff by big tech companies on the fiscal year 2024 H-1B visa cap?
On January 27, 2023, USCIS announced that the initial registration period for the fiscal year 2024 H-1B cap season will open at noon Eastern on March 1 and run through noon Eastern on March 17, 2023, and that registrants will be able to create new accounts beginning at noon Eastern on Feb. 21, 2023.
If USCIS receives enough registrations by March 17, it will randomly select registrations and send selection notifications via users’ myUSCIS online accounts. If USCIS does not receive enough registrations, all registrations that were properly submitted in the initial registration period will be selected. USCIS intends to notify account holders by March 31.
The recent mass layoffs by big tech companies have had a significant impact on H-1B visa petitions. With the economic downturn caused by the COVID-19 pandemic, many tech companies have been forced to make cuts, leading to a sharp decrease in the demand for H-1B visa workers and even new hiring freeze. The decrease or freeze may open up more visa slots for non-tech workers who are seeking to work in other industries in the U.S. since each year the H-1B visa cap has been the same for years (65,000 for beneficiaries with bachelor’s degrees and an additional 20,000 for advanced degree graduates from U.S. universities).
It is also possible that the recent layoff could result in an increase in competition for H-1B visas among non-tech workers, as more workers seek to secure a visa in the face of economic uncertainty.
In any event, we believe that the recent decrease in demand for H-1B visa workers or the freeze of new hiring from big tech companies presents a good opportunity for small businesses in non-tech industries to file necessary H-1B petitions.
Please contact us for your potential H-1B petitions and receive high-quality representation at a reasonable cost!
This blog does not, and is not intended to, constitute legal advice; instead, it is for general informational purposes only. The information presented in this blog may not reflect the most up-to-date legal developments and is subject to change at any point in time. The information presented in this blog does not create an attorney-client relationship. Readers of this blog should contact their attorney to obtain advice regarding any particular legal matter. No readers should act or refrain from acting based on the information presented in this blog without first seeking legal advice from counsel in the relevant jurisdiction. No representations are made that this blog is error-free. Altaffer & Chen PLLC expressly disclaims all liabilities arising from any actions taken or refrained from based on the information presented in this blog.
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