This is the first part in a three-part series.

Non-Immigrant Visas – The H-1B Skilled Worker Option

An H-1B visa is a nonimmigrant visa which allows U.S. employers to employ highly skilled temporary workers. H-1B workers are admitted for an initial period of three years, which may be extended for an additional three years. In some cases an extension beyond the six-year limit is allowed.

Basic Requirements

1) The position must be a “specialty occupation”

• An occupation that requires highly skilled specialized knowledge; and

• The position normally requires at least a bachelor’s degree or higher (or its equivalent) in the specialty

2) The potential H-1B employee must specifically meet the requirements of the occupation

• The employee’s degree must be related to the occupation;

• Related experience may be used in place of a degree (3 years of experience equals 1 year of study);

• If the occupation requires a license or professional credentials, such as a doctor, certified public accountant, lawyer etc.) you must already possess the license or credential prior to the employer applying for the H-1B;

3) The employer must have the capability of paying, and must actually pay the prevailing wage (what U.S. workers are paid) and follow the posting requirements.

Procedure

Assuming you meet the requirements above, the potential employer files the Petition for Alien Worker on your behalf. It is highly recommended that the employer files premium processing – which for $1000.00 will give you and your potential employer a response within two weeks. Last year (for fiscal year 2008), the H-1B cap of 65,000 was reached in one (1) day and the H-1B cap of 20,000 for those with master’s degrees or higher was reached in about one (1) month. Some employers such as university, or nonprofit or government research organizations are exempt from this cap.

Obtaining an H-1B is highly competitive and can be a complex process. Due to the scarcity of H-1B numbers available, it is extremely important that the petition is done properly to avoid delays and denials and to avoid violating the Department of Labor’s terms of H-1B employment.

H-1Bs typically require the student to find a company willing to file an H-1B petition, which may not be an easy task. Companies unfamiliar with the process may be reluctant to go through the process. While not common, it is possible for an entrepreneurial student to form his/her own company which can then sponsor the student’s own H-1B. All typical H-1B requirements must be met, but note that a “self-petition” will be carefully scrutinized. This also may not be a practical solution for a student who may not have sufficient funds to open his/her own company. For more information on H-1B for Entrepreneurs, click here.

Later this week, I will discuss other nonimmigrant visa options such as TN visas, L-1 Intracompany Transferee visas, O visas and E Investor visas, and other immigrant visa (green card) options.

There are 3 steps to obtaining a Green Card (Permanent Residence) through employer sponsorship.

Step 1: PERM Labor Certification & Recruitment

Step 2: I-140 Immigrant Petition for Alien Worker

Step 3: I-485 Adjustment of Status Application

Step 1 – PERM Labor Certification:

• PERM Labor Certification first involves advertising the position to show that there are no qualified U.S. workers that want the position.
• The attorney prepares a prevailing wage request based on information obtained from the company regarding the qualifications for the position and the salary offered. The attorney prepares an advertisement for the position and makes a prevailing wage request to the State Workforce Agency (SWA).
• Once the prevailing wage is issued by the SWA, the attorney provides the required guidelines on where and how often the ad must be run. The guidelines for this process are very specific and have to be tracked during the recruitment period.
• The advertising involves 2 Sunday ads in the major newspaper where the job is located, and a 30-day posting with the State Workforce Agency. Additionally other recruitment must be conducted and documented such as participation in job fairs, campus placement offices, employer’s website, placement agencies, local papers etc.
• After the required 30 day recruitment period is completed, the PERM petition is filed with the Department of Labor (DOL).
• It takes the DOL an estimated 1 to 6 months to provide the PERM labor certification – though times may vary from case to case and may also vary depending on the DOL’s caseload.

Step 2 – I-140 Immigrant Petition for Alien Worker:
• Once the PERM Labor Certification is approved, the Alien Worker Petition is filed.
• The I-140 Petition is submitted to the USCIS with documentation showing the employee’s experience and qualifications such as diploma, resume, transcript.
• The employer provides documentation such as brochures and information on the work and history of the company as well as the company’s last three years’ tax returns. Tax returns are required to show that the employer has the ability to pay the salary offered to the employee.
• The employer drafts a letter about the background of the company as well as detailing the specific position and how the particular employee meets the required experience for the position.
• Processing time is approximately 9 months, but may vary from case to case and on the caseload currently being processed by USCIS.

Step 3 – I-485 Adjustment of Status:
• After the Alien Worker Petition is approved, the employee is eligible to file for Adjustment of Status. The adjustment of status process is the application for the actual green card.
• The adjustment of status application cannot be filed until the employer’s priority date is current. The Department of State issues these dates every month and are subject to change each month. Visa priority dates may also retrogress, meaning visa numbers may become backlogged and therefore unavailable. Whether or not a visa number is available depends on the type of green card petition filed and can vary depending on the classification of the employee.
• An employee in this stage of the process may concurrently apply for a temporary work permit while he/she awaits adjudication of the green card. Typically a work permit is issued within 90 days after the application is received. The work permit is issued in one year increments and can be renewed each year until the green card is approved.
• Current I-485 processing time is approximately 9 months.

An immigration attorney can assist companies and potential employees in determining the likelihood of success of a petition and the best method to employ in order to increase the chances of approval at all stages of the multi-step process.

For more info on green cards through employment click here.

For info on temporary work visas, work in the U.S. click here.