Work Visa Attorneys in Chicago, IL.
Including H-1B, O-1, P-1, L-1 & TN
H-1B Specialty Visa Introduction
The H-1B visa authorizes employment for a foreign national worker in a specialty occupation. This involves filing an H-1B petition by the employer on behalf of the worker. Generally, the worker’s H-1B status can be extended up to 6 years. The basic requirements for an H-1B visa or status are: 1) the specialty occupation or profession requires a bachelor's degree or equivalent work experience in a specialist field; 2) the foreign national worker has attained that degree or equivalent work experience; 3) the employer offers a prevailing or actual wage salary (whichever is higher); and 4) the Department of Labor must approve the Labor Condition Attestation (LCA) prior to H-1B approval.
Identifying the job and beneficiary's requirements
The first step when filing an H-1B petition is to identify the position being offered and determine whether it is a specialty occupation. The beneficiary must have the requirements to perform that specialty occupation, such as a U.S. bachelor's degree or an equivalent foreign degree, work experience, or any appropriate licenses.
Paying the Prevailing or Actual Wage
The employer must offer and pay the beneficiary the prevailing wage, meaning a formulated salary within the wage of similarly situated workers in the area of intended employment, or the actual wage paid to other employed workers possessing similar experience and qualifications.
Filing a Labor Condition Attestation Application with the DOL
The United States Citizenship & Immigration Services (USCIS) requires that employers file an LCA directly with the Department of Labor (DOL). The LCA requires that the employer attests to the following: 1) the company will pay the beneficiary the same as other similar employees; 2) such employment will not adversely affect the working conditions of other similar employees in the area; 3) there is no strike or labor dispute at the place of employment; and 4) provided notice of filing to bargaining representative, or if no bargaining representative, posted two conspicuous notices at the place of employment containing specific job information including job title and salary. The employer must make available at its offices for public examination a copy of the LCA and supporting documentation regarding the H-1B employee and other similarly situated employees.
Filing the H-1B Petition with the BCIS
Once the DOL approves the LCA, then the company will need to file the H-1B petition with the USCIS. If approved, the USCIS will issue an approval notice as evidence of the beneficiary's H-1B status.
Getting an H-1B Visa for Travel
Once the foreign national employee obtains H-1B status in the United States he or she will need to acquire an H-1B visa in his/her passport for travel out of, and return to, the United States.
The beneficiary's spouse and children can obtain legal immigration status as dependents of his H-1B status (H-4 status). They are not permitted to work, but may attend school.
Visa Number Availability
Since 2004, H-1B visa numbers have been reached after the start of the fiscal year resulting in many applicants having to wait until the next fiscal year before they can work on an H-1B visa. Extra visa numbers have been allotted to applicants with a Master’s Degree or higher that was acquired from U.S. educational institution. At any rate, it is important that a lawyer review the details of the proposed employment to determine whether the worker will be subject to the H-1B visa cap.
H-2A and H-2B Visas for Temporary Workers and H-3 Visas for Trainees
The H-2A (agricultural) or H-2B visa is for a person coming to the United States to perform temporary services or labor. The job and the employer's need for the duties to be performed must be temporary. Thus, the need must be for one year or less and can be a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need. The applicant must not be displacing U.S. workers and the employment cannot adversely affect the wages and working conditions of U.S. workers.
Admission is for no more than one year. Extensions may be granted for no more than 12 months and for a maximum of 3 years. However, extensions are given only in extraordinary circumstances and a new labor certification if required each time. After an applicant has spent 3 years in the U.S., re-admittance is not permitted until the person has resided and has been physically present outside the U.S. for the immediately prior 6 months.
The Secretary of Department of Homeland Security, in consultation with the Secretary of State, had identified 39 countries whose nationals are eligible to participate in the H-2A and H-2B programs for the coming year. The Effective date is January 18, 2010, and shall be without effect at the end of one year after January 18, 2010. The H-3 visa is for a temporary worker invited to a program to receive training other than graduate medical training. This visa must not be used primarily to produce productive employment.
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