H-1B Visas

H-1B Visas

The US H1B visa is a non-immigrant visa, which allows a US company to employ a foreign individual to work at their company for up to six years. Applying for a non-immigrant visa is usually quicker than applying for a US Green Card .If an US company requires staff on a long term assignment in the US they are often brought in initially using a non-immigrant visa such as the H1B visa.

An individual may not apply for an H-1B Visa; In order to obtain an H-1B Visa the employer who wishes to hire the individual must be the one to place the petition. There is a numerical limit to how many H1B visas may be granted annually. The US employer may begin applying for the H-1B visa six months before the actual start date of the visa. Since the beginning of the FY 2009 is October 1, 2008, employers can apply as soon as April 1, 2008 for the FY 2009 cap, but the beneficiary cannot start work until October 1st.

The H1B visa is meant to be used for staff in occupations that require a vast knowledge in a specific subject, which is those occupations which require a high degree of specialized knowledge. Usually at least the equivalent of a job-relevant 4-year US Bachelor's degree is required (this requirement may be met by possessing a 3-year degree and 3 years' relevant post-graduate experience). However, professionals such as doctors, lawyers, accountants and others need to be licensed in order to practice in the state of intended employment – e.g. a lawyer must have passed the relevant state bar exam. Non-graduates can also be employed on an H1B visa where they can prove to be 'graduate equivalent' by virtue of twelve or more years' experience in the occupation in which they wish to be employed.Positions that are not "specialty occupations", or for positions that the candidate lacks the qualifications/experience for an H1B visa, may be filled using an H-2B visa.

The new H1B legislation obliges that certain employers, called 'H1B dependent employers' have to advertise positions in the USA before petitioning to employ foreign H1B workers for those positions. An employer is defined H1B dependent they have 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'). Moreover, all new H1B petitions and 1stextensions 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 program for resident US workers.

The first time the H1B visa is given it can be valid for up to three years. The H1B visa may then be extended, in the first instance for up to two more years and finally for one further year, totaling a maximum of six years. If the employee wanted to remain in the United States for more than the maximum six years the H1B visa permits, they may apply for a green card. If the employee is not granted a green card, when the six year period runs out, the employee must live outside the United States for a minimum of one year before another application is made for them to return to the United States on an L or an H visa.

Once a company has brought an employee to the US on an H1B visa, if the company dismisses the employee before the H1B visa reaches its expiration date, the company is responsible for any reasonable costs that the employee requires in order to move back to their foreign residence. This provision covers only dismissal, and it is not valid when an employee decides to resign.


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