H-1B Visas

One of the most appealing temporary work visas for people hoping to come to the United States is the H-1B visa. This status allows a foreign national to work in the U.S. for a specific employer for a maximum period of six years, with two notable exceptions. At Attorney Spiros Stavros Nicolet, knowledgeable immigration attorney Spiro Nicolet is highly experienced in pursuing H-1B approvals for individuals working in a range of industries. He can guide Wisconsin employers and their employees through this potentially complicated process.

To be eligible for an H-1B visa, both the foreign worker and the position that he or she will be filling must meet certain requirements. First, the job must be a specialty occupation. In general, this is defined as a position that requires at least a Bachelor’s degree in a specific field to perform its duties. With many professions, including doctors, librarians, lawyers, accountants, or psychologists, it is very clear that the position requires a Bachelor’s degree and therefore qualifies as a specialty occupation. However, some positions, primarily those in the IT industry, can be more difficult to determine.

In addition to the position’s requirements, the employee must also possess the Bachelor’s degree or foreign equivalent that is necessary to hold the offered job. Importantly, if the position requires a higher educational level or license in addition to a Bachelor’s degree, the employee must also possess these heightened qualifications in order to receive the H-1B visa.

While the H-1B visa offers a great opportunity for foreign workers to pursue employment in the U.S., this status is not without its own limitations. For example, there is a yearly cap of 65,000 foreign nationals who may be approved for it. It is possible to be exempt from this cap, but most first-time H-1B employees are not.

Also, there is a six-year maximum on how long a person may hold H-1B status in the United States. However, there are two important exceptions to this rule. First, an employee may extend the H-1B visa by one year if, before he or she began the sixth year of employment under this status, the employer files an I-140 Petition or ETA Form 9089 (Application for a Labor Certification) on behalf of the employee. Second, the employee may extend the H-1B visa by three years if he or she is the beneficiary of an approved I-140 Petition but cannot apply for a green card due to the backlog in priority dates.

The application for H-1B status is made on the Form I-129 Petition. However, the H-1B petition requires three different forms: the Form I-129, the Form I-129 H Supplement, and the Form I-129 Data Collection. Before submitting the H-1B petition, moreover, the employer must file a labor condition application (LCA) with the Department of Labor. The LCA informs the Department of Labor about details of the position, such as the title, job site location, and rate of pay. The Department of Labor will certify the LCA in approximately seven days and provide a copy of the certified document to the employer for inclusion in the H-1B petition.

USCIS charges a number of filing fees that must be included with the H-1B petition. For instance, there is a base fee of $325 that every employer must submit. Additionally, if the employer is submitting its first H-1B petition on behalf of an employee, there is another fee of $500 that is required. The employer may also be required to pay a third fee of $750 if it has 25 or fewer employees, or $1,500 if it has 26 or more employees.

The employer should also prepare a signed letter in support of the H-1B petition. The letter outlines the terms and conditions of the employment. It additionally contains the employer’s affirmation that it will abide by the regulations governing this status and will ensure the employee does so as well.

Finally, the employer must also include proof that the foreign worker is qualified for the H-1B position. This is usually established by copies of the individual’s educational degrees, transcripts, and work experience letters.

Bringing foreign talent into the United States can have a transformative effect on your business, while marking a critical step forward in the career of a foreign national. At Attorney Spiros Stavros Nicolet, immigration lawyer Spiro Nicolet and his team are available to assist Wisconsin companies and foreign nationals in seeking H-1B visas or other forms of status. Contact our office today at 773-562-6884 or through our online form to speak to one of our skilled staff members about any immigration-related issues.