H1-B and E-3 Visas

The H-1B Non-Immigrant visa category is the most common Non-Immigrant work visa utilized by U.S. companies to employ foreign nationals. The basic requirement for obtaining an H1-B visa is that the foreign national must have a U.S. bachelor's degree or its equivalent, and the position for which the foreign national is being sponsored must require a U.S. bachelor's degree or its equivalent. This equivalency can be established through a combination of education and experience.

"Standard" 3-Year H1-B Visas

A "standard" or traditional H1B visa can be used to sponsor a foreign national from most countries. There are currently 65,000 visas available every governmental fiscal year (from October 1-September 30). All foreign nationals who wish to work on a standard H1-B visa must obtain approval from the U.S. Citizenship and Immigration Services ("USCIS") prior to entering the United States on H1-B status.

A standard H1-B Non-Immigrant visa is valid for a three-year period. A foreign national may remain on H1-B status for a total of six years. However, a standard H1-B visa may be extended beyond this six-year period if the foreign national has a green card application in process for at least one year. This means that every H1-B worker who wishes to permanently reside in the united States should have a green card application filed before the end of their fifth year on H1-B status.

"Singapore" and "Chile" H1-B Visas

As part of the Free Trade Agreements between the United States and Chile and Singapore, 6800 of the 65,000 H1-B standard visas that are available each fiscal year are set aside for Chile and Singapore nationals. Of these, 5400 visas are set aside for Singapore nationals, and 1200 visas are set aside for Chile nationals. As such, the number of standard H1-B visas available is really 58,200 visas. However, any Singapore or Chile H1-B visas that are not used in a fiscal year are added back into the 65,000 H1-B cap.

Unlike the standard and masters exempt H1-B visas, Singapore and Chile nationals who are not already in the United States need not obtain approval from the USCIS prior to entering the United States on H1-B status. Instead, they may apply directly to a U.S. Embassy or consulate.

Singapore and Chile H1-B visas are one-year visas that can be renewed indefinitely. However, the Chile and Singapore H1-B visas are not "dual intent" visas. As such, a foreign national on a Singapore or Chile H1-B visa is not permitted to seek permanent residency status within the United States.

"Masters Exempt" H1-B Visas

In addition to the 65,000 H1-B visas discussed above, Congress has provided for an additional 20,000 H1-B visas to be available for foreign nationals who have earned a Master's degree or higher from a U.S. college or university. Like the standard H1-B visa, Masters Exempt H1-B visas may be used to sponsor foreign nationals from most countries. Similarly, all foreign nationals who wish to work on a Masters Exempt H1-B visa must obtain approval from the USCIS prior to entering the United States on H1-B status.

The Masters Exempt H1-B visa is a three-year visa that may be renewed for a total of six years. As with a Standard H1-B visa, a Masters Exempt H1-B visa holder may extend their H1-B status beyond the six-year period if the foreign national has a green card application in process for at least one year.

"Cap Exempt" H1-B Visas

In addition to the above subcategories of the H1-B visas, there are a number of instances in which a foreign national may obtain an H1-B visa irrespective of whether the H1-B cap has been reached. These include:

  • Foreign nationals who work for institutions of higher education, non-profit organizations or government research organizations;
  • Foreign nationals who are transferring between an institute of higher education, a non-profit organization or government research organization; and
  • Foreign nationals who are J-1 non-immigrants who have a 2-year foreign residency waiver.

The H1B Visa Process

The application process for all of the H1B subcategories discussed above consists of three steps:

First, if the foreign national was educated outside of the United States, his/her educational credentials must be evaluated by an independent credentialing consultant to determine whether his/her education (and work experience, if necessary) is equivalent to a U.S. bachelor's degree or higher.

Next, a "Labor Condition Application" (or "LCA") must be filed with the U.S. Department of Labor ("DOL"). The LCA certifies that the salary being offered meets the actual or prevailing wage for the position for which the foreign national is being sponsored in the geographic region where the foreign national will be employed.

Once these first two steps are completed, an H1-B Non-Immigrant visa petition can be filed either with the USCIS or with a U.S. Embassy or consulate, depending on the location of the foreign national. If filed with the USCIS, an H1-B petition may be filed under the standard processing approach or the "premium processing" approach. Under the premium processing approach, the USCIS will review an H1-B petition within two weeks of filing. Note that this does not mean that the USCIS will decide a case within two weeks, although most cases are decided within this time frame.

Educational/Work History Credential Evaluations

The USCIS generally requires that all petitions filed on behalf of a foreign national who is relying upon a foreign degree to obtain an H1-B status, include an education credential evaluation. An education credential evaluation is an opinion from a qualified individual or agency stating whether or not the foreign national's formal education (or education plus relevant experience) is equivalent to a U.S. bachelor's degree, or higher.

Normally, if sixteen years of foreign formal education are documented, an opinion stating that the foreign national has the equivalent to a U.S. bachelor's degree may be obtained. However, it is also important to note that the degree must be related to the field in which the foreign national will work. For example, for a System Analyst position, the USCIS traditionally allows individuals with Mathematics and Engineering degrees to qualify, as well as Computer Science degrees. However, the USCIS tends to question whether individuals with degrees in Business, Commerce, or other management fields qualify for software-related positions. Such concerns can be overcome depending upon the position being sponsored and the post-secondary qualifications of the individual.

If a foreign national's foreign degree is not equivalent to a U.S. bachelor's degree, it must be demonstrated that the combination of the foreign national's education and relevant work experience (including software certifications) are "equivalent" to a U.S. bachelor's degree. Three years of relevant work experience is equivalent to one year of college education. Therefore, a foreign national who has completed the equivalent of two years of college will need to show six years of relevant work experience in order to qualify for an H1B or E-3 visa. It is important to note that the experience needed must be such that a person holding a bachelor's degree or higher would normally perform these duties.

Labor Condition Application

The Labor Condition Application ("LCA") is filed with the U.S. Department of Labor. This application certifies to the DOL that the sponsor is paying the foreign national wages that are at least the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or the prevailing wage level for the occupational classification in the area of employment, whichever is greater. It is important for a company to realize that an LCA is a legally enforceable contract between the company and the U.S. Department of Labor. As such, it is vital that a sponsoring employer understand the legal obligations it is accepting under the LCA.

In addition to the above, the sponsoring employer is also making the following attestations in an LCA:
  • That employing the foreign national will not adversely affect the working conditions of U.S. workers similarly employed;
  • That there is not a strike or lockout in the course of a labor dispute in the occupational classification at the place of employment; and
  • That the employer, at the time of filing the application, has provided notice of the filing to the bargaining representative, if any, of the persons employed by the employer in the occupational classification and the area for which the foreign nationals are sought; or, if there is no such bargaining representative, has posted notice of the filing in conspicuous locations at the place of employment.

As part of the LCA process, employers are required to document that they have complied with the attestations listed on the LCA. Although none of this documentation need be submitted to the DOL, some of it must be available for public inspection. The rest must be maintained for review in the event of a DOL investigation.

Family Members

The spouse and unmarried minor children of an H1B or E-3 worker may be admitted as H-4 or E-3 dependent non-immigrants. Such family members must make a separate filing with the USCIS and/or U.S. Embassy or consulate to obtain H-4 or E-3 status.

Family members of an H1B worker are not authorized to work in the United States unless they have an independent basis for employment authorization. However, as discussed above, spouses of an E-3 visa holder may work in the United States so long as they obtain prior authorization from the USCIS.

Family members under any of the above categories may attend school.

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