H-1B VISA PROVIDES OPPORTUNITIES FOR EMPLOYERS AND SKILLED WORKERS

by Todd Gallinger

Many businesses are seeking trained individuals to perform work. Many trained individuals are also seeking employment and opportunity into the U.S. Often times, the problem can be solved by brining these two parties, the employer and trained worker, together using an H-1B visa for “specialty occupations.”

An H-1B visa is available for workers have a U.S. Bachelor’s degree or equivalent, and work in the field of their study. It is commonly used for technical workers, but is also available for managers and other specialists. If foreign degrees or experience is involved, these must often be certified by an expert. To qualify, the employer must pay the prevailing wage for the position in their geographic location.

Though considered a temporary visa, the H-1B visa can be extended for up for six years. If the employer sponsors the employee for a green card, the visa can be extended indefinitely allowing the employee to continue working while waiting for a result on their green card. The spouse and dependants of a H-1B worker are qualified for an H-4 visa, which allows them to reside and study in the U.S., but does not allow for work authorization.

The process for applying for an H-1B visa, other than the timing explained below, is simple and quick compared to other types of employment based visas. The employer does not have to demonstrate that a U.S. worker is not available for the job. Though a Labor Conditions Application is required to demonstrate that a prevailing wage is paid, these can most often be certified online within one day. Employers and employees also have the option of paying for premium processing which requires the U.S. Citizenship and Immigration Services to process the application within 15 days of receipt.

Though educated employees contribute to the economy, under pressure from anti-immigration forces Congress has acted to restrict the number of H-1B visas available. This year there will be only 65,000 H-1B visas available, plus another 20,000 limited to workers with master’s degrees or higher earned at university in the U.S. There were the same number of H-1B visas available last year, and the initial quota of 65,000 were used up in under two months. This means that for over ten months of the year, unless transferring between employers, people were not even eligible to apply for H-1B visas.

Because the quota is likely to fill up quickly again, those interested are strongly encouraged to file their applications early. The soonest you can file an application in 2007 is April 1. The visas on application that get in before the deadline will start being issued at the beginning of the new Governmental fiscal year, October 1, 2007. Employers should be aware if they have filed an application and it has not yet been granted, they can substitute in employees. Employees should also be aware that they can switch between employers anytime of the year if they are already in H-1B status, though the total time between all employers is limited to six years.

Please note that this article is for informational purposes and it does not contain legal advice. If you are interested in more information about H-1B visas or other areas of immigration law, you should contact a qualified attorney to obtain advice related to your specific circumstance.

Todd E. Gallinger is an attorney with Gill & Gallinger LLP, a law firm practicing immigration and civil law. He can be reached at (949) 862-0010 or info@gillgallinger.com.