Temporary Visas

H-1B, H-1B1, H-2B, H-3

H-1B Visa for Professional Specialty Occupations

The H-1B visa is the most common type of temporary work visa in the U.S. A job offer qualifies for H-1B classification if it is in a “professional specialty occupation,” i.e., where the occupational group and the specific job normally require a bachelor’s or higher degree in an academic field directly related to the duties as a minimum requirement for entry-level employment. The offered job must require a degree related to the job duties, and the sponsored foreign worker must have that degree or its equivalent.

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 it pays to other professionals employed in that job, whichever is higher.

The foreign worker is qualified for employment in a professional specialty occupation if he or she has the relevant type of academic degree required for the offered job. In some cases, the worker may qualify via an equivalent to the right degree through combined post-secondary education, training, and work experience in progressively responsible positions at 3:1 (three years of progressively responsible work experience = one year of higher education). The U.S. employer must offer to pay the foreign worker the prevailing wage for the job in the area where the job is located, or the actual wage paid to workers in the same job, whichever is higher, as W-2 salary with all federal, state & local payroll taxes withheld. Before filing an H-1B petition with USCIS, the employer must 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. H-1B visas may be unavailable for most of the year. Filings for new H-1B petitions begin in early April, after a registration and electronic lottery in March. The law limiting the number of H-1B visas available each year has not been updated by Congress since 1990, when the US economy was one quarter of its present size. Family dependents may obtain H-4 visas, but most spouses in H-4 status are ineligible to work until the H-1B principal worker is the beneficiary of an approved immigrant visa petition.

H-1B1 Visas for Treaty Nationals of Chile & Singapore

There is a carveout under the H-1B cap, setting aside 6,800 H-1B1 treaty visas per fiscal year for
nationals of Chile and 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), and the prevailing wage, posting & Labor Condition Application requirements.

However, unlike the regular H-1B, the Chile/Singapore H-1B1 is only available in one-year increments. While renewable, the H-1B1 does not allow “dual intent” – the worker must maintain an unabandoned foreign residence and 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 worker may take a certified LCA, employer’s letter and original diploma(s), and apply directly for the H-1B1 visa at a U.S. Embassy or Consulate abroad, in much the same fashion as the E-3 visa for Australian treaty professionals. 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 any renewals or changes of employer once the foreign national has spent one year in this status already. There is no “portability” between different H-1B1 jobs, nor from H-1B1 to H-1B (workers with H-1B1 treaty status must be counted against the cap when changing to H-1B). 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!