When employers seek overseas talent, they primarily rely on the H-1B visa.The H-1B visa is for persons working in occupations that require theoretical and practical application of a highly specialized body of knowledge.In addition, H-1B applicants must either: be licensed by the state if such a license is required to engage in the occupation, have a bachelor’s degree or higher in the relevant specialty, or have experience that is equivalent to a bachelor’s degree.
Furthermore, employers petitioning for an H-1B worker must attest to the U.S. Department of Labor that the position meets certain requirements.Namely, the employer must declare that the wages to be paid will be equal to or exceed the prevailing wage for the occupation or the employer, that the position will not negatively affect similarly situated U.S. workers, and that there is no current labor dispute at the place of employment.If H-1B workers comprise more than 15 percent of an employer’s workforce, the employer must also certify that foreign-born workers will not supplant U.S. workers at the employer’s business, or be placed with another employer in a position that would supplant a U.S. worker.
The current statutory limit for H-1B visas is 65,000 per year.Applications for H-1B visas consistently exceed the statutory cap each year.For fiscal year 2014, the U.S. received 124,000 H-1B applications and the cap was reached during the first week of the filing period, which ended on April 5, 2013.
Even though H-1B visas are no longer available, H-1B1 visas are immediately available, as the statutory limit on these visas has not been surpassed.The H-1B1 visa is a subset of the H-1B visa and some requirements are quite similar.Legislation caps the H-1B1 visa at 1400 for Chilean professionals and 5400 for Singaporean professionals.An H-1B1 visa is valid for one year and may be renewed indefinitely.
In order to be eligible for an H-1B1 visa, the employee:
-must be a citizen of Singapore or Chile
-must be working in a specialty occupation, as described above
-must possess a bachelor’s degree or its equivalent, as described above
-must be licensed if required, as described above
-must be employed by a U.S. employer (self-employment or independent contracting are not allowed)
-must possess non-immigrant intent or the intent to return to one’s home country (this is unlike the H-1B visa which allows dual intent and the possibility of permanent residency)
An employer interested in sponsoring an employee for an H-1B1 visa must fill out a labor certification as described above.However, the employer does not have to submit Form I-129, Petition for Nonimmigrant worker, to the U.S. Citizenship and Immigration Service (USCIS), and the applicant does not need to obtain a Notice of Approval, Form I-797, before submitting their visa application.As such, the employee may apply for the H-1B1 visa directly with a U.S. Consulate.
Spouses and children under 21 years of age of the H-1B1 visa holder may come to the United States on an H-4 visa.While the principal applicant must be a citizen of either Chile or Singapore, derivative spouses and children need not be.Derivative spouses and children may not work on an H-4 visa (a separate work visa is required) but they may study on an H-4 visa without having to obtain an F-1 student visa.
At MJ Law, we have immigration law offices in San Jose, San Francisco, and San Mateo, California.Our immigration attorneys have much experience obtaining H-1B1 visas.Whether you have questions about specialty occupations, personal eligibility, or about the visa process itself, our professionals can help.Please call our office to schedule a consultation.