Visa Wiki

Overview

The H-1B visa is a program that allows skilled workers from other countries to work in the United States for American companies in jobs that require a college degree or specialized experience. It’s like a special work permit that lasts up to six years, but there are limits on how many visas are available each year. If someone loses their job while on an H-1B visa, they must find a new employer to sponsor them or apply for a different immigration status.

Structure

Duration of Stay

The H-1B visa lets people work in the US for up to six years, but there are some rules. If they apply for permanent residency before their fifth year, they can keep renewing the visa until they get a decision. There’s also a ten-year limit for work related to US Department of Defense projects. If someone wants to keep working in the US after six years but hasn’t gotten permanent residency, they have to leave for a year before reapplying, unless they qualify for an exception. People can switch jobs on an H-1B visa, but the new employer has to sponsor another H-1B visa.

Numerical Cap and Exemptions

The Immigration Act of 1990 says that no more than 65,000 H-1B visas can be given out each year, but there are some exceptions. People with master’s degrees or higher from US universities can apply for an additional 20,000 visas. Universities, some nonprofit organizations, and government research facilities are not included in the cap. People from Chile and Singapore also have their own set of H-1B visas. Some years, not all the visas are given out. To apply for an H-1B visa, people have to submit their applications starting in April and no more than 6 months before their job starts. People who have had H-1B visas in the past six years don’t count towards the cap.

Lottery System

Every year on April 1st, people can start submitting applications for H-1B visas that will begin on October 1st. There’s a limited number of visas available, and USCIS picks people randomly through a lottery when they get enough applications. People with US master’s degrees get two chances to be selected, while those without only get one. The H-1B visa has caused some controversy because some people worry that it takes away jobs from Americans. Some people have even filed lawsuits to challenge the lottery system.

Taxation

If you’re on an H-1B visa, how you pay taxes depends on if you’re considered a resident or not. If you’re a resident, you have to pay taxes on all your money, even if you earned it outside the US. If you’re not a resident, you only pay taxes on money you earned in the US. This can be confusing, so it’s a good idea to talk to a tax expert. Employers have to take out Social Security and Medicare taxes from your pay. When you’re old enough to retire, you might be able to get Social Security benefits if you worked in the US and paid Social Security taxes. But if you get retirement or pension payments from your home country, you might not be able to get Social Security benefits.

Intent to Immigrate Permanently

The H-1B visa lets people have the intention to move to the US permanently, even though it’s a temporary work visa. This is called the “dual intent” provision, and it makes the H-1B visa popular for people who want to eventually become permanent residents. Employers often use the H-1B visa to help their employees get a green card, which is like a permanent visa. This is because the H-1B visa lets people work in the US for a long time, which can help them meet the requirements for a green card. But not everyone with an H-1B visa can get a green card, and the process can be difficult and take a lot of time.

Dependents

People who have an H-1B visa can bring their immediate family, like a spouse and kids under 21, to the US as dependents with an H-4 visa. The H-4 visa lets family members stay in the US as long as the H-1B visa holder is allowed to stay. They can also go to school, get a driver’s license, and open a bank account. Some spouses of H-1B visa holders can also apply for permission to work in the US by filing a form and paying a fee. They can only work after they get approval and a special card.

Administrative Processing

If someone with an H-1B visa leaves the US for any reason except going to Canada or Mexico, they need a valid visa stamp in their passport to come back. If the visa stamp is expired but the H-1B visa is still valid, they have to go to a US embassy to get a new stamp. Sometimes, H-1B workers need extra background checks, which is called administrative processing. The checks are supposed to take ten days or less, but sometimes they can take years.

Entrepreneurs and Consultants

The EB-5 visa program lets foreign entrepreneurs apply for a green card if they invest enough money in a US business and create at least 10 jobs. But some people don’t like this option. The University of Massachusetts created a program in 2014 that lets entrepreneurs start US companies while teaching and mentoring on campus to meet visa requirements. Self-employed consultants don’t have a visa to work in the US for a long time, so consulting companies sponsor them on H-1B visas to work for clients and make money together.

Application Process

Getting an H-1B visa has three steps. First, the employer has to fill out a form with the US Department of Labor about how much the worker will get paid and what their job will be like. When that’s approved, the employer fills out another form and sends it with other papers and money. If that’s approved, the worker can start working on the start date of the job. If the worker is outside the US, they can apply for an H-1B visa using the approved form and papers. When they enter the US with the H-1B visa, they might get a form to show they’re in the US legally.

Premium Processing

The Premium Processing Service is a choice that H-1B visa applicants can make if they want their applications to be processed within 15 days, but they have to pay more money for it. The US Citizenship and Immigration Services guarantees that they’ll send an approval notice, denial notice, or other type of notice within the 15 days after they get the application. If they don’t, the applicant gets their Premium Processing Fee back. But, the service has been suspended for a while in the past because there were too many applications to process.

STEM Extensions

The Optional Practical Training (OPT) program lets foreign students studying Science, Technology, Engineering, or Mathematics (STEM) work in the US for up to 29 months on a student visa, giving them time to get an H-1B visa. In 2014, a court case said the OPT STEM extension made it harder for Americans to get jobs and let employers avoid paying certain things. But in 2016, the US Department of Homeland Security made the OPT period longer and added more rules to the program.

Protections for American Workers

The US Department of Labor oversees the H-1B visa program to make sure foreign workers don’t hurt American workers’ pay or working conditions. Every H-1B petition needs a certified form from the Department of Labor called the Labor Condition Application (LCA). The LCA makes sure the H-1B worker gets paid at least as much as other people doing the same job and says the H-1B program can’t be used to break a strike or replace American workers. Employers don’t have to advertise the job before hiring an H-1B worker, but they have to tell workers or put the LCA where they can see it. LCAs are public information that anyone can see if they ask for it.

Labor Condition Application

Every H-1B petition needs a signed Labor Condition Application (LCA) from the employer, which says they’ll pay H-1B workers the same as other people doing similar work or at least the minimum wage for that job. They also promise that hiring H-1B workers won’t hurt the working conditions of other workers. If there’s a strike or lockout, the employer has to tell the DOL within three days and show the LCA to every H-1B worker. The employer must pay H-1B workers at least as much as other people in the same job, using one of four skill-based prevailing wage levels. The employer must show proof that they’re following the rules, and they’re in trouble if they don’t.

Limitations on Employment Authorization

H-1B workers can only work for the employer who filed their petition and do only the tasks described in it. If their employer follows the rules, they may work at another company’s location. They can work for multiple employers, but each employer must apply for a nonimmigrant employee. If an employer doesn’t apply, it’s considered unauthorized employment and the worker may lose their status.

Fees for H-1B Visa Program and U.S. Worker Education/Training

Studies show that the H-1B visa program has both positive and negative effects on American workers. On the positive side, it can lead to higher wages, lower consumer prices, more innovation, and better productivity. However, it can also lead to lower wages and fewer job opportunities for U.S. workers. Overall, the program has been linked to better performance and innovation from companies.

Similar Programs

Apart from the H-1B visa, there are also other types of visas available for foreign workers who want to work temporarily in the US, such as L-1 visas for foreign employees of a corporation, TN-1 visas for Canadian and Mexican citizens, and E-3 visas for Australians. H-1B1 visas are a sub-set of H-1B visas issued to residents of Chile and Singapore. The H-2B visa program allows employers to hire foreign workers for temporary non-agricultural work. Different countries may negotiate special preferences for their nationals as part of treaty negotiations, and immigration law changes may be included in large bills to avoid controversy.