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Work Visas
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H-1B
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About H1-B visa 
H-1B Eligibility
H-1B Requirements for Employers
About H-2B visa
New on H1B visa
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About H1-B visa
The US H1B visa is a non-immigrant visa, which allows a US company to employ a foreign individual for up to six years. The employer must petition for entry of the employee. Individuals can not apply for an H1B visa to allow them to work in the US. H1B visas are subject to annual numerical limits.
The H1B visa is designed to be used for staff in "speciality occupations", that is those occupations which require a high degree of specialized knowledge. Generally at least the equivalent of a job-relevant 4-year US Bachelor's degree is required (this requirement can usually be met by having a 3-year degree and 3 years' relevant post-graduate experience). However, professionals such as lawyers, doctors, accountants and others must be licensed to practice in the state of intended employment – e.g. a lawyer must generally have passed the relevant state bar exam. Non-graduates may be employed on an H1B visa where they can claim to be 'graduate equivalent' by virtue of twelve or more years' experience in the occupation.
The initial visa may be granted for up to three years. It may then be extended, in the first instance for up to two further years, and eventually for one further year, to a maximum of six years. Those wishing to remain in the US for more than six years may, while still in the US on an H1B visa, apply for permanent residence (the "green card"): if such employees do not gain permanent residence, when the six year period runs out, they must live outside the US for at least one year before an application is made for them to enter on an H or an L visa.
Once a company has brought an employee to the US on an H1B visa, should the company dismiss that employee before the expiry of the visa, the company is liable for any reasonable costs that the employee incurs in moving him/herself, his/her effects, back to his/her last foreign residence. This provision covers only dismissal, it is not relevant when an employee chooses to resign.
Any US employer can sponsor an H1B petition, provided it has an IRS Tax Number, also known as an IRS Number or Tax ID Number. This number is needed for obtaining approval of the Labor Condition Application (LCA), which is an essential preliminary to the H1B petition itself.
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H-1B Eligibility
In order to qualify for an H1B visa, the alien must demonstrate that s/he is able to work in the speciality occupation for which s/he is being hired by the sponsoring employer. Alien must have:
 A relevant US college degree;
A non-US college degree (and, generally, 3 years' relevant high-level work experience) independently evaluated as being equivalent to a relevant US college degree;
At least 12 years' high-level work experience, independently evaluated as being equivalent to a US college degree; or
Any relevant State or Federal license that may be required in order to practice in a particular profession. [If there is a requirement for a State or Federal license in order to practice any 'speciality occupation', then the alien must generally have such a license in order to qualify for an H1B visa. For example, doctors, lawyers, accountants and similar professionals must generally have passed the relevant state licensing examination and be in all other respects qualified to practice in the State of intended employment.]
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H-1B Requirements for
Employers
Employers should take note that sponsoring an H1B petition involves:
To pay the H1B worker at least the higher of the wage paid to similar workers in the same company or the "prevailing wage" (usually determined by the relevant State Employment Services Agency) for the occupation in the area the worker will be employed;
That the recruitment of the H1B worker(s) will not adversely affect the conditions of the employer's US-resident employees in similar jobs;
That there is no strike or lockout occurring at the time the Labor Condition Application is submitted, and that the approved LCA will not be used to support petitions for H1B aliens to be employed at the site of any subsequent strike or lockout;
That a copy of the LCA form will be given to the H1B worker and either given to the bargaining representative of employees in similar occupations or (if there is no bargaining representative) posted in 2 conspicuous locations for at least 10 days in the place the H1B alien will be working;
To maintain records of the LCA and the H1B alien's employment for inspection by the US Department of Labor.
(The prevailing wage is generally lower for non-profit and academic/research organizations.)
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About H-2B visa
Positions that are not "speciality occupations", or for which the candidate lacks the qualifications/experience for an H1B visa, may be filled using an H-2B visa. The disadvantage of the H-2B visa is that it requires 'labor certification' - an expensive and time consuming process that involves extensive advertising of the position, and satisfying the authorities that there are no US workers available to do the job. Also, H-2B visas are initially granted only for one year, extendable in one year increments to a maximum of 3 years. As each extension requires a new Labor Certification, it unsurprising that, of the annual quota of 66,000 H-2B visas, only a few thousand are ever issued.
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New Law Changes Aspects of the Temporary Work Program
08 Dec 2004 (USCIS Press Release)
U.S. Citizenship and Immigration Services (USCIS) announced today that President Bush has signed the Omnibus Appropriations Act for FY2005, which contains provisions affecting the H1B and L nonimmigrant visa categories. Both the H1B and L programs allow U.S. employers to sponsor temporary foreign workers.
New Fees
Before October 1, 2003, employers who used the H1B program were required to pay an additional $1,000 fee imposed by the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA). In part, that $1,000 fee paid for U.S. citizens, lawful permanent residents and other U.S. workers to attend job training and receive low-income scholarships or grants for mathematics, engineering or science enrichment courses administered by the National Science Foundation and the Department of Labor. Those ACWIA fee requirements sunset on October 1, 2003.
The H1B provisions of the Omnibus Appropriations Act reinstitute the ACWIA fee and raises it to $1,500. Petitioners who employ no more than 25 full-time equivalent employees, including any affiliate or subsidiary, may submit a reduced fee of $750. Certain types of petitions previously exempt from the $1,000 fee are still exempt from the new $1,500 and $750 fees. The new $1,500 and $750 fees apply to any non-exempt petitions filed with USCIS after December 8, 2004.
In addition, the Act creates a new Fraud Prevention and Detection Fee of $500 which must be paid by petitioners seeking a beneficiary's initial grant of H1B or L classification or those petitioners seeking to change a beneficiary's employer within those classifications. Other than petitions to amend or extend stay filed by an existing H1B or L employer, there are no exemptions from the $500 fee. The new $500 fee applies to petitions filed with USCIS on or after March 8, 2005.
Each of these fees is in addition to the base processing fee of $185 to file a Petition for Nonimmigrant Worker (Form I-129) and any premium processing fees ($1,000) if applicable.
H1B Cap
This Act and Public Law 108-441 (Dec. 3, 2004) provide new exemptions from the congressionally mandated annual H1B cap.
The first 20,000 H1B beneficiaries who have earned a master's degree or higher from a U.S. institution of higher education are not subject to the annual congressionally mandated H1B visa cap of 65,000. After those 20,000 slots are filled, USCIS is required to count those cases against the cap for the remainder of the fiscal year.
For FY2005, the new provision will allow USCIS to accept new petitions on behalf of up to 20,000 beneficiaries meeting these criteria. Petitions under this provision cannot be filed at this time, as the provision is not effective until March 8, 2005. USCIS will provide additional guidance on eligibility and process at a later date.
Public Law 108-441 extended the Conrad 30 J-1 program covering certain medical graduates. Nonimmigrants currently in the U.S. on a J-1 (exchange) visa who receive a waiver of the two-year residency requirement if requested by either a federal or state agency are now exempt from the H1B cap. Qualifying employers of these beneficiaries may submit H1B petitions notwithstanding the fact that the H1B cap was already met for FY2005, after December 8, 2004. Petitions must separately evaluate whether an H1B petitioner is exempt from certain fees and whether the petition is exempt from the H1B cap, because the rules applicable to each type of exemption are not the same. For example, a petition by an otherwise non-exempt employer to extend the H1B stay of a beneficiary for the first time would be exempt from the H1B cap, but not from either the $1,500 or $750 fee.
A separate press release covers changes to the L-1 program made by the Omnibus Appropriations Act for FY2005.
A separate press release covers changes to the L-1 program made by the Omnibus Appropriations Act for FY2005.
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