- H-1B Cap Issues
- H-1B Cap Exemptions
- Timing Issues for Cap-Subject H-1B Visas
- Legal Help from an Experienced H-1B Lawyer
- Tips for Collecting Evidence of Extraordinary Ability
- Building Your Case for Extraordinary Ability
Temporary Work Visas
H-1B, H-1B1, H-2B, H-3
H-1B Visa for Professional Specialty Occupations
The H-1B visa is by far the most common type of temporary work visa in the U.S. A job qualifies for H-1B classification where it is in a “professional specialty occupation,” i.e., the occupation normally requires a bachelor’s or advanced degree in an academic field directly related to the job duties, as a minimum required for entry-level employment.
The U.S. employer must agree to pay the professional worker the higher of the local prevailing wage for that occupation in the area of intended employment, as determined by the U.S. Department of Labor, or the actual wage paid to other professionals employed in that occupation, whichever is higher.
The foreign worker is qualified for employment in the professional specialty occupation if he or she has the relevant type of degree required for the offered job. In some cases, the worker may qualify via an equivalent to the right degree through a combination of post-secondary education, training, and work experience in progressively responsible positions, as determined by a U.S. credentials evaluator. The U.S. employer must offer to pay, and must actually pay, the prevailing wage for the job in the area where the job is located. As a prerequisite to filing the H-1B petition with USCIS, the employer must first file a Labor Condition Application with the Department of Labor to affirm the appropriate wage offer and working conditions. However, there is a numerical limit on how many H-1B visas can be granted in a fiscal year. When demand is high, as it has been in recent years, these visas may be unavailable for long periods of time. Family dependents may obtain H-4 visas, but spouses in H-4 status are generally ineligible to work.
H-1B1 Visas for Treaty Nationals of Chile & Singapore
These visas are similar to the H-1B in terms of the definition of a qualifying professional specialty occupation (job requires a related 4-year Bachelor’s degree as a minimum for entry-level employment), the prevailing wage, posting & Labor Condition Application requirements.
However, unlike the regular H-1B, the H-1B1 is only available in one-year increments, and while renewable, it does not allow “dual intent” – the worker must maintain an intent to return to the home country, so H-1B1 status is incompatible with a pending green card case. No petition to USCIS is required, so the H-1B1 worker may take the certified LCA, employer’s letter and original diploma(s), and apply directly for the H-1B1 visa abroad at a U.S. Embassy or Consulate. Consular posts can be quite strict about proof of continued nonimmigrant intent: the post in Singapore is known to be reluctant to issue new H-1B1 visas for renewals or changes of employer. There is no “portability” between different H-1B1 jobs, nor from H-1B1 to H-1B, and Premium processing is unavailable, so a petition to change H-1B1 employers may take 5 months to get approved. An H-1B1 worker is not permitted to begin work at the new job until that employer’s petition is approved.
The annual cap (numerical limit) of 6,800 for the H-1B1 has never been reached, so these treaty-based applications may be filed at any time year round, for an immediate start date.
H-2B Temporary Workers Visa
H-2B Temporary workers whose services are required for less than one year may fill a short-term need that makes the job intrinsically temporary. Types of employer needs that are covered by this visa include a one-time, seasonal, peak-load or intermittent need. A temporary application for labor certification must be filed with and approved by the Department of Labor before a petition can be filed by the H-2 employer for any temporary workers. The initial period of admission is less than one year (maximum of 364 days) and extensions may granted if an unforeseen aspect of need develops. The maximum stay allowed is three years, at which point no change of status to any other visa classification may be granted.
H-3 Trainee Visa
H-3 trainees may come to the U.S. in order to complete training that is unavailable in their home country, and not to staff positions ordinarily filled by U.S. workers nor to provide services for the U.S. employer. The company in the U.S. must file a petition with USCIS that includes a very detailed outline of the training program – including areas and subjects covered, time and location of hours of classroom instruction complementing the on-the-job portions of training, names and qualifications of supervisors, and any means of progress evaluation and review of the trainee. The employer’s description of the training program must also contain an explanation of why such training is not available in the home country, and why they are willing to go to the considerable time and expense of providing the training, which will not allow them to retain the foreign worker thereafter as an employee of the U.S. organization. The maximum period of stay allowed in H-3 status is two years. Change of status to another visa classification cannot be granted after the trainee has been in the U.S. for 18 months.
If you would like more information about temporary work visas, contact Karin Wolman today!