H - 1B Specialty Occupation Work Visa

As a Rhode island H - 1B Visa Attorney, James Howe has an in depth understanding of the Immigration and Naturalization Process.

An H1B visa allows a foreign person with at least a bachelor’s degree or its equivalent in work experience to work in the U.S., if the position the foreigner will fill requires such preparation, and the employer agrees to pay the individual the prevailing wage for such a position in the location of employment. The person will be in non-immigrant status (meaning that the person will not be residing permanently in the U.S.). However, the individual may apply for permanent residency thereafter. This is appropriate for someone who has a specialty job offer in the U.S. (requiring a bachelor degree or its equivalent in relevant work experience) and wants to start working as soon as possible.

There is currently a premium processing option, which for an additional $1,000 in filing fees, the US Immigration Service will commit to process the application within 15 calendar days from receipt of the application. Processing the application does not mean that there will necessarily be a final decision after 15 days, but rather that there will be a response after this time. This response may be a visa approval, a denial or it may also include a request for additional documentation from the petitioner or the employer. Click here for more information on premium processing.

Foreigners with a bachelor degree, or its equivalent in work experience and specialized skills, are eligible for an H-1B visa (their dependents are eligible for an H-4 visa). To apply for this visa you must have the following requirements:

A job offer in the U.S. with a company willing to sponsor you
A salary and working conditions that matches what others are making in the same field in the area where you will be working
A bachelor degree or experience in the field of employment equivalent to a bachelor degree; or
Relevant work experience to the position offered

H1-B visas last for 3 years.

Can be renewed or transferred repeatedly, for a total of 6 years of validity. The visa holder may also apply for a permanent residency soon after applying for the H-1 (as a dual intent applicant).

In the event the H-1B beneficiary seeks alternative employment, he/she will need to transfer the H-1B visa. The H-1B holder may begin working in the new job prior the approval of this transfer, however, if the transfer is not approved the original H-1B visa will be lost. It is therefore recommended to complete the transfer before starting work in the new job. H-1B dependents (family members) or H-4’s can live and study in the U.S. as long as the H-1B or "primary" visa remains valid.

If the H-1 B employee is terminated for any reason before his/her authorization to work in the U.S. expires, the employer is liable for the reasonable transportation costs to return to the immigrant's last place of residence.
Employer is prohibited from charging a terminated H-1B employee a penalty for leaving his/her employment prior to any agreed date.
Employer must pay the H-1B employee the required wage no later than 30 days from the H1 B employee's entry into the U.S., or 60 days from the approval date of the visa petition if the H1 B employee is already in the U.S..
Employer must provide the same working conditions and pay the same benefits to H1B employees as they do for U.S. employees.
The employer shall keep a copy of the LCA application and appropriate employment and wage records supporting the validity of the statements made in its LCA application and shall make this information available in the event that the U.S. Department of Labor or the US Immigration Service requests it.
There are additional job posting requirements or "attestations" imposed on employers that are H-1B dependents. The guideline established by the Immigration and Nationalization Act (INA) below determines that an employer is H-1B dependent if:

The employer has a total of 1 to 25 FTE's (Full time equivalent employees), and employs 7 or more H-1 B employees.
The employer has a total of 25 to 50 FTE's (Full time equivalent employees), and employs 12 or more H-1 B employees.
The employer has a total of 51 or more FTE's (Full time equivalent employees), and 15% or more of those employed are H-1 B employees.
Note: H-1B employees that have a minimum of a Master's degree or earn U.S.$60.000 or more, exempt their employers from these additional job posting requirements or "attestations)

All documents must be presented to the US Immigration Service with their English translation. It is cost-effective and therefore recommended to our clients that they bring these documents translated to our office:

Birth certificate
Copy of passport, current visa, and your I-94 form (I-94 form only if you are already in the U.S.)
Copies of university transcript's)
Copy of your resume
Copy of any educational certificates or diplomas
Letters of recommendation from
* present employer
* previous employer (if possible)
* previous instructors/professors (if possible)

Job description outlining duties and responsibilities and minimum experience and education required for position.
Letter from American sponsoring employer with offer of employment, including position and salary offered
Sponsor employer information needed:

Address, telephone, and fax numbers
Tax ID number
Name and title of direct supervisor
Description of their recruitment efforts to date
Description of their business and the business date of inception
Number of current employees at company
Number of current employees with H-1B visas
Current financial statements (balance sheet and income statement or tax returns)
Any marketing material describing the employer and its business

There are three major stages:

Stage One:
Approval of the prevailing wage request with the applicable State Department of Employment (Approximately 1 week)

Stage Two:
Approval of the labor certification, form ETA 9035 by the U.S. Dept. of Labor (Approximately 1 week)

Stage Three:
Approval of the H-1B visa application, consisting of forms: I-129, I-129 H and I-129 W (Approximately 60-180 days) or receipt of notice requesting additional documentation or evidence to support application. In the latter case, we will work with the client to provide the additional information to the US Immigration Service and we will prepare a response with the appropriate analysis and legal argument. This last scenario would increase the amount of time required to complete the process and may also increase the legal fees due, depending on the amount of additional work required.

Note: Time estimates vary depending on the volume and processing times of the different US Immigration Service centers

Visa limitations: There are yearly limits or caps on the number of H-1B visas available. It is therefore recommended to start processing an H-1B as soon as possible, as the annual caps on H-1B visas may delay the start date of an H-1 B employee. Click here to learn about the current H-1B visa caps.

For more information regarding Immigration Law in Rhode Island
Click here: Immigration Law - Frequently Asked Questions