The H-1B Visa and Its Impact on Foreign Relations

October 01, 2010

America's H-1B Visa allows qualified foreign workers temporary entry into the United States for the purpose of undertaking employment. The H-1B Visa also entitles a worker's spouse and children to live in America, and is one of the most sought after non-immigrant visas. However, this visa only applies to foreign workers who meet certain criteria, and unlike many other visa programs, an American employer must petition United States Citizenship and Immigration Services ("USCIS") on behalf of a prospective foreign employee.

Despite the complications involved in an H-1B Visa application, it is generally quicker than applying for a U.S. green card and remains one of the most popular ways to bring staff into the United States for long term assignments and during which time, green card applications can process. New fee hikes, however, have some companies questioning the efficacy of the H-1B program.

Details of the H-1B Visa Program

In order to obtain an H-1B Visa, a foreign worker must be employed in a specialty occupation (an occupation which requires a degree or experience equivalent to a U.S. Bachelors degree). Generally, to qualify as a specialized employee, a foreign worker must hold an American bachelor's degree (or the foreign equivalent) or higher as required by the occupation. However, even workers without a bachelor's degree can qualify for an H-1B Visa if they have the education, specialized training, and/or experience equivalent to a bachelor's degree and have relevant work experience directly related to the specialty occupation.

Employers, rather than the employees themselves, must petition USCIS for entry of employees under H-1B Visas. As part of the application, the employer must file a labor condition application with the Department of Labor. A labor condition application shows that the employer is informed of the prevailing wage for the position and will pay the employee accordingly. This ensures that the foreign employee is being paid a fair wage, and protects U.S. jobs by requiring employers to pay the going rate for similar work. H-1B applications take some time to process, and U.S. employers may start applying for H-1B visas six months before the actual start date of the visa.

Normally, an H-1B Visa is issued for up to three years. Under certain conditions, it may be extended for up to six years. Those entering on an H-1B Visa who wish to remain in the U.S. for more than six years must apply for permanent residence (the 'green card'); if permanent resident status is denied, when the six year period runs out the employee must live outside the U.S. for at least a year before an application is made for them to enter again on an H or an L visa.

There is a numerical limit on the number of H-1B visas issued annually: 65,000 plus an additional 20, 000 for holders of U.S. advanced degrees. This is calculated each year, beginning October 1st. It is critical to monitor the quota availability as it is often exhausted during the fiscal year.

Furthermore, ensuring a worker meets the qualification criteria can be difficult. For example, in some cases, the government must grant credit for the required training and/or experience, which means it is up to the employer and employee to convince a decision-maker that foreign credentials translate into a qualifying specialty occupation. Given the often challenging process of obtaining an H-1B Visa, it is highly recommended to work with an experienced immigration attorney.

The Future of H-1B Visas

President Obama recently signed into law a fee hike on certain visas that has caused an uproar among foreign technology companies with over half of their employees in the U.S. on H-1B or L1 visas. Many Indian firms will be hit heavy by the increased fees, and the Indian Commerce Minister called the fee hike an "economic barrier" that will impede both Indian and global growth. India has come out strongly against the legislation, calling it a violation of World Trade Organization regulations, and Indian diplomats are giving the visa fee hike a high place on their agenda.

Despite qualms about the new costs associated with H-1B applications, the H-1B Visa is likely to remain a popular option for foreign workers entering the U.S. However, much stands to be resolved between the United States and foreign critics of the fee hikes. For those employers and employees seeking entry with an H-1B Visa, information on new developments will be highly relevant. The assistance of an immigration attorney may be the best way to keep up with the evolving H-1B Visa program.

Article provided by Teplen & Associates, PLLC
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