Temporary Work Visa -H1 B-

For purposes of employment, visas may be divided into two general categories: those that permit employment and those that do not. Temporary work visas, that is, visas offering a limited stay of employment in this country, come in various types and apply to various occupations. Some may be pursued by the foreign employee him- or herself, and some are obtained through a petition by an employer on behalf of the potential employee.

Congress created the immigration laws with certain principles in mind. Primary among these were that aliens in the workforce not displace U.S. workers, and that the use of alien workers not facilitate a decline in wages or working conditions. Visa processing is typically quicker for highly skilled workers than for those with less education and skills.

 

Work Visas and Requirements

 

The visa most commonly thought of as the temporary work visa is the "H" type, which has several classifications:

  • The "H-1A" applies to registered nurses and responds to a shortage of persons in this field.
  • The H-1B covers specialty occupations, sometimes called "professional" occupations. To qualify for an H-1B, an alien must possess highly specialized knowledge. A baseline requirement for this showing is a bachelor's, or 4-year college, degree. In addition to the alien's qualifications, the position itself must require a bachelor's degree. In other words, it's a two-sided analysis -- the alien must possess highly specialized knowledge, and the position must demand application of that knowledge.
  • The H-2 visa applies to jobs in agriculture, and other areas for which there are insufficient U.S. workers.

All H visas require an offer of employment from an U.S. employer, and proof that the wage to be paid is comparable to other positions in that occupation. In addition to these requirements, the H-2 visa necessitates a showing (by the employer) that there were no qualified U.S. workers available and willing to fill the position.

 

"H" Visa Limitations and Potential Problems

 

Temporary visas in the H classification are subject to numerical limitations imposed by Congress. What this means is that receipt of a visa is not a guarantee of immediate entry into the country. If the annual limit is reached, an alien may have to wait until a later time to be eligible for entry, even though he or she has been granted a visa. In addition, the different classes of H visa have different processing times; an H-1B will be processed more quickly by the USCIS than an H-2B. Visas in the H class may be extended; H-1s may be extended for a total stay of not longer than six years, while H-2s may be extended for a maximum stay of three years.

A fast-paced economy in which employees often change jobs and whole companies are bought and sold can also create trouble for H-1B visa holders. The visa is employer specific, granting the alien permission to perform a particular job for a particular employer. If the alien wishes to change jobs, the new employer must secure a new H-1B covering the employee. The employee cannot simply quit the first job and accept the second. If the employer for whom the alien works is bought out or merges with another company, a new or amended petition may be required.

 

Employer's Obligations: Department of Labor


An employer must file a petition with the Department of Labor seeking labor certification before a foreign national can apply for a temporary worker visa. The employer must show that United States workers are not available to fill the position and that wages are working conditions meet regional standards. A single employer usually files this petition. An exception is made for agricultural producer associations, who are allowed to file as joint employers. There are annual caps on some types of temporary worker visas. 

 

U.S. Immigration Attorney JULIEN A. GRAYSTONE 

 

Active Member of the American Immigration Lawyers Association.D.C. Practice Limited to Immigration Matters & Proceedings before Federal Courts & AgenciesOver Fifteen Years of Experience Practicing Immigration Law