Immigration Law: Understanding the H-1B Visa

The H-1B visa is a valuable channel for skilled immigration. It enables U.S. employers to recruit and hire foreign professionals for specialty occupations that can be difficult to fill. H-1B visa holders have benefited the tech industry in particular, but sectors like healthcare, science, finance, and engineering have also used overseas talent to enrich their workforces.

The employer obtains the visa on the worker’s behalf. Once issued, it gives the worker legal status to live and work in the United States for three years, after which point it may be extended for another three-year period. Unlike some other temporary visas, H-1B holders may eventually apply for a green card.

H-1B Visa Requirements
For a worker to be eligible for an H-1B visa, specific requirements must be met. They include:

-An employer-employee relationship with a U.S. employer who can hire, pay, terminate, and generally control the work of the visa applicant. Self-employed people cannot generally sponsor themselves.

-The job must involve a specialty skill, meaning that a degree is a prerequisite for the position due to the complexity of the work.
The applicant can prove that they have the education or skill required to do the job.

-The salary for the position must be equal to or greater than the current wage for that particular job in the region where the employer operates.

-There are only 85,000 H-1B visas made available each fiscal year. If they have all been taken at the time the employer makes the application, the worker will not receive one.

The Application Process
The process begins when the U.S. employer sends the foreign worker a written offer of employment that includes the following details:

-The position and its duties

-The duration of employment

-Information about any supervisors and co-workers

The employer must also:
Complete a form detailing the experience and skills required for the position as well as its duties, to prove that the wage being offered is standard for an employee in a similar position with a similar level of experience.
Sign a Labor Certification Application verifying that hiring the overseas worker will not adversely affect other workers.

Once the Department of Labor approves the application, the employer can file the H-1B visa petition with the U.S. Citizenship and Immigration Service (USCIS). If it is approved, the employee can go to the nearest consulate to obtain the H-1B visa stamp on their passport, which will allow them to travel to the U.S. with their families under “H” status.

Applying for a Green Card
H-1B visa holders may be eligible for an employment-based green card. Their employer must obtain Program Electronic Review Management (PERM) Labor Certification by demonstrating that there are no suitable U.S. workers to fill the position and the wage is acceptable by current standards. Once it is received, the employer files a Form I-140, Immigrant Petition for Alien Worker. If it is approved, the employee can apply for a green card by filing Form I-485, Adjustment of Status.

H-1B Workers and Termination

If an H-1B nonimmigrant is terminated or laid off, the employer is required to pay their way home if they intend to leave the U.S. Otherwise, the employee may have the right to transfer their H-1B petition to another qualified employer within 60 days of their last paycheck, provided the job is professional in scope and requires a bachelor’s degree or higher.

Contact Us
If you are a Georgia employer requiring assistance with filing an H-1B petition or an employee seeking an adjustment of status to permanent resident, please contact the Law Office of Judith Delus, P.A. We work closely with U.S. companies to ensure that labor certification and visa applications are prepared and filed in a timely manner and have helped many foreign workers and their families obtain legal permanent resident status in the United States. For a confidential consultation, call 678.601.5580 or contact us today.

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Law Office of Judith Delus, P.A.

Mrs. Montgomery practices in the areas of family law, immigration, and landlord/tenant law. She is very active in the Atlanta Metro Area and dedicates her spare time to charities that help and promote children’s rights, elder rights, and animal rights.

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