Friday, June 5, 2009

WHAT... WHO... WHEN about H1 or H1B VISA

The H-1B is a non-immigrant visa in USA under the Immigration & Nationality Act, section 101(a)(15)(H). It allows U.S. employers to temporarily employ foreign workers in specialty occupations. (Individuals cannot apply for H1b VISA on their own)
Here the specialty occupation is defined as someone who is highly specialized in a field of human endeavor including, but not limited to, IT / Computer professionals, University professors and teachers, Engineers, Healthcare workers, Accountants, Financial analysts, Management consultants, Lawyers, Architects, Nurses, Physicians, Surgeons, Dentists, Scientists, Systems analysts, Journalists and editors, Foreign Law advisors, Psychologists, Technical publications writers, Market research analysts, Teachers in elementary or secondary schools, colleges and requiring the attainment of a bachelor’s degree or its equivalent as a minimum (with the exception of fashion models, who must be "of distinguished merit and ability".) Likewise, the foreign worker must possess at least a bachelor’s degree or its equivalent and state licensure, if required to practice in that field. H-1B work-authorization is strictly limited to employment by the sponsoring employer.
An Employer can apply H1 for a Non-Graduate by claiming the equivalent work experience which has be minimum of twelve years.
The current law limits to 65,000 the number of aliens who may be issued a visa or otherwise provided H-1B status. (The numerical limitation was temporarily raised to 195,000 in FY2001, FY2002 and FY2003.) In addition, excluded from the ceiling are all H-1B non-immigrants who work at (but not necessarily for) universities and non-profit research facilities. This means that contractors working at, but not directly employed by the institution may be exempt from the cap. Free Trade Agreements allow a carve out from the numerical limit of 1,400 for Chilean nationals and 5,400 for Singapore nationals. Laws also exempt up to 20,000 foreign nationals holding a master’s or higher degree from U.S. universities from the cap on H-1B visas.
The Department of Homeland Security approved about 132,000 H-1B visas in 2004 and 117,000 in 2005.
Visa renewals do not count towards the annual limits. Transfers among employers only count when changing jobs from an employer exempt from the limits (academia or research) to one that is not exempt.
An Employer can start filing H-1B visa six months before the actual start date of the visa. Since the beginning of the FY 2010 is October 1, 2009, employers can apply as soon as April 1, 2009 for the FY 2010 cap, but the beneficiary cannot start work until October 1st.
New H1B legislation requires certain employers, called 'H1B dependent employers' to advertise positions in the USA before petitioning to employ H1B workers for those positions. H1B dependent employers are defined as those having more than 15% of their employees in H1B status (for firms with over 50 employees – small firms are allowed a higher percentage of H1B employees before becoming 'dependent'). In addition all new H1B petitions and 1st extensions of H1B's now require a fee (in addition to the usual filing fees) of US$1,000 to be paid, which will be used to fund a training programme for resident US workers.

Employers must attest that wages offered are at least equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the job in question, or alternatively, pay the prevailing wage for the occupation in the area of intended employment, whichever is greater. By signing the LCA (Labor Condition Application), the employer attests that: prevailing wage rate for area of employment will be paid; working conditions of position will not adversely affect conditions of similarly employed American workers; place of employment not experiencing labor dispute involving a strike or lockout.Prior to 2005, the law required H-1B workers to be paid the higher of the prevailing wage for the same occupation and geographic location or that which the employers pays to similarly situated employees. Other factors, such as age and skill were not permitted to be taken into account for the prevailing wage. Congress changed the program in 2004 to require the Department of Labor to provide four skill-based prevailing wage levels for employers to use. Employers using this system classify most workers at the lowest skill level. This is the only prevailing wage mechanism the law permits that incorporates factors other than occupation and location.The law specifically limits the approval process of LCAs to checking for "obvious errors and inaccuracies." The approval process for these employer attestations simply amounts to the checking the form is filled out correctly. The employer is, however, advised of their liability if they are replacing a US worker.
Generally H1 VISA is granted for 3 years and can be extended for another 3 years. However there have been cases where VISA was granted for 1 or 2 years initially and then renewed.
The employer company can also revoke the VISA with some additional charges for revocation and also making sure the employee is sent to his parent or resident country bearing all the charges.

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