H Visa – Professional Workers

The H classification is divided into four (4) categories.

H-1B Visa – Specialty Occupation

Overview

The H-1B visa is the most common visa used by employers in the United States to employ foreign nationals. It is a temporary professional visa that allows professionals to enter the United States to accept temporary employment within specialty occupations. A specialty occupation is one that requires theoretical or technical expertise in specialized fields and the attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent in work experience) as a minimum for entry into the occupation in the U.S.

Cap Limitation

Only the initial H-1B visa petition is subject to annual quota restrictions. A maximum of 65,000 H-1B non-immigrant visas are issued per fiscal year (from October 1 to September 30). Nonetheless, the first 20,000 petitions filed for a beneficiary who has obtained a U.S. Master’s degree or higher are exempt from this cap.

Furthermore, the cap does not apply to applicants filing H-1B petitions through institutions of higher education, nonprofit research organizations, and government research organizations and filing for amendments, extensions, and transfers of their current H-1B visas.

The USCIS starts accepting H-1B cap-subject visa petitions on April 1^st of each year but no more than six months before the H-1B start date. As such, the employer should contact an attorney three to four months in advance to April 1^st, to make sure that the petitions are prepared and filed on time.

Requirements

To qualify for an H-1B visa:

• The employer must demonstrate that the proposed employment qualifies as a specialty occupation that is one requiring a minimum of a Bachelor’s or higher degree. (ex: accountant, acupuncturist, computer programmer, financial analyst, graphic designer, sales manager, etc.);

• The foreign national must have the required qualifications, meaning:
  • A U.S. baccalaureate or higher degree which is required by the specialty occupation;
  • A foreign degree determined to be equivalent to the U.S. baccalaureate degree; or
  • A combination of education and experience which is equivalent to the required U.S. degree.

• Where licensure is required to practice a profession, the applicant must hold appropriate licensure under state law;

An employer can request, by paying an additional fee, premium processing service which requires the USCIS to adjudicate the petition within 15 calendar days.

Terms and Conditions

• The employer must pay its H-1B worker(s) at least the “required” wage which is the higher of the prevailing wage or the employer’s actual wage (in-house wage) for similarly employed workers. The prevailing wage is the wage rate for the occupational classification in the geographical area of employment;

• The employer must pay certain costs and expenses on behalf of an H1B employee, such as the return transportation costs of the H-1B employee if the latter is dismissed prior the completion of the H-1B term;

• The H-1B employee can enter the U.S. under the H-1B status up to ten (10) days in advance of the employment start date and is also granted permission to leave ten (10) days after expiration of his/her status. However, there is no “grace period” for H-1B employees terminated before the completion of the term of their visa;

• The H-1B visa is employer specific, meaning that the H-1B employee is limited to employment with the approved employer/petitioner only. As such, a change of employer requires a new H-1B petition;

• H-1B foreign specialty workers are not required to maintain foreign residence and may seek permanent residence in the U.S.

Period of Stay

The H-1B visa is usually granted in three-year increments not to exceed a total of 6 years, unless a permanent residence application is in progress, in which event additional extensions beyond six-years may be obtained.

All the time spent outside the U.S. is subtracted and does not count toward the six-year period. As such, the time out of the U.S. may be recaptured to the six years.

Additionally, if an H-1B holder remains outside the U.S. for one year, s/he may begin the six-year period anew, but the new petition would be subject to the H-1B cap.

Route to the Green Card

The H-1B status can also be a path to the green card through the EB-2 or EB-3 Permanent Immigration categories. (Click for more information on EB-2 and EB-3.)

Family of H-1B Holders

The spouse and unmarried children under 21 years of age of an H-1B holder are eligible for H-4 status with the same restrictions as the principal.  Nonetheless, the dependents are not authorized to work in the U.S. but they can attend school.

H-2A Visa – Temporary Agricultural workers

The H-2A visa allows U.S. employers to employ foreign nationals to perform agricultural labor or services of a temporary or seasonal nature on a temporary basis.

H-2B Visa – Non-Agricultural Workers

The H-2B non-agricultural temporary worker program allows U.S. employers to employ foreign nationals to fill temporary nonagricultural jobs.

Cap Limitation

The number of H-2B classifications that may be granted per fiscal year is statutorily limited.

Once the H-2B cap is reached, the USCIS only accept petitions for H-2B workers who are exempt from the H-2B cap.

H-2A and H-2B Visas – General Information

General Requirements

To qualify for an H-2A and an H-2B visas:

• The employer’s need for the prospective worker’s services or labor must be temporary or seasonal;

• There must be no sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work;

• The employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Countries List

The H-2A and H-2B petitions are only available for nationals of countries eligible to participate in the H-2 programs.

Period of Stay

The H-2 classifications are granted for a period no longer than one (1) year and can be extended in increments of up to one (1) year. The maximum period of stay in an H-2A or H-2B classification is three (3) years.

Family of H-2 Workers

The spouse and unmarried children under 21 years of age of an H-2 holder are entitled to an H-4 nonimmigrant classification.  However, they are not authorized to engage in employment in the United States.

H-3 Visa – Nonimmigrant Trainee

Overview

The H-3 nonimmigrant visa category is for an alien coming temporarily to the U.S. as a trainee or as a Special Education Exchange Visitor.

This classification is not intended for U.S. employment but to provide an alien with job-related training for work that will ultimately be performed outside the United States.

• Under the H-3 Trainee program, the alien receives training, other than graduate or medical education training, that is not available in his/her home country.

• Under the H-3 Special Education Exchange Visitor, the alien participates in a special education exchange visitor training program for children with physical, mental, or emotional disabilities.

Period of Stay

The H-3 Trainee program allows a trainee to remain in the United States for up to 2 years, while the H-3 special education exchange visitor program is for up to 18 months.

Family of H-3 Visa Holders

The spouses and children who are under the age of 21 of the H-3 holder are entitled to accompany him/her to the U.S. However, the family members will not be authorized to work in the United States.

For more information about this visa category contact us today to schedule a professional consultation with an Immigration Attorney. Call (305) 515-VISA (8472) or click here.