Nonimmigrant Employment Visas (H-1B, H-2A, H-2B)
Are you a University-educated foreign professional who works in their field of education, and who has a job offer in the United States? Or, are you an employer who is seeking to hire a foreign national to work in the United States for a temporary time period?
Please continue reading to learn all about: (1) the H-1B Visa available to educated foreign professionals who have U.S. job offers; and, (2) the H-2A and H-2B Visas that are available to U.S. employers to hire temporary foreign agricultural and other seasonal workers (such as in the tourism industry).
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The H-1B Visa
Do you have a job offer in the United States for a job that requires a University-level degree in your field? If so, you are going to need some sort of lawful status that permits you to work in the United States. Often the easiest way to get this done is for your employer to apply for a Nonimmigrant Employment Visa on your behalf. Applying for a Nonimmigrant Visa tends to be a much faster and cheaper option than first applying for an Immigrant Visa (Green Card eligible visa); and with the H-1B, you will be able to pursue that Green Card later on, if you and your employer choose to do so. Although an H-1B Visa is a temporary Nonimmigrant Visa, it will allow you to live and work in the United States for an initial period of up to 3 years! This three year period can generally be extended once, but not normally for more than 6 years total time (though there are some limited exceptions). That is generally plenty of time for your employer to petition for a Green Card-eligible visa on your behalf however, and the best part is that you will be able to keep living and working on your H-1B Nonimmigrant Status while your permanent immigrant visa is pending. Additionally, if you are granted H-1B status, your spouse and your unmarried children under the age of 21, are eligible to stay legally in the United States as H-4s. While H-4 status holders cannot generally work (with some exceptions for some spouses of H-1B holders), they can study while they are in the United States.
So what do you need in order to be eligible for an H-1B? Well, H-1Bs are generally for foreign professionals who are in speciality occupations. Thus, you will need a University-level (Bachelor’s Degree equivalent) in the field of the job offer, in order to be eligible. Technically speaking, H-1B-eligible occupations are occupations and professions that require “highly specialized knowledge;” the type of knowledge normally associated with a University-level degree or higher.
Unfortunately, there is an annual limit to the number of foreign nationals that can receive these visas every fiscal year. The annual limit is 65,000 individuals for every upcoming fiscal year (the fiscal year runs from October 1st till September 30th of the following calendar year), and the application window for applying starts running on April 1st of every year. This means that if you have a job offer, then you and your employer should generally start working with your immigration attorney to get your H-1B application together, well before April 1st of the upcoming fiscal year that you want to begin working in. The H-1B cap is always realized within just a few days of April 1st. In April 2018, the 65,000 spots were gone on April 6th, for example. Thus, it is imperative that you and your employer are organized and proactive about applying.
There are a couple of exceptions to this annual limit. For one, there is no limit to the number of H-1B visas that USCIS can grant to foreign nationals who are going to be employed by institutions of higher education (such as U.S. universities), and their affiliated nonprofit entities and research organizations. Also, when a government research organization is the sponsoring employer, you will not be subject to this numerical cap. Another group of individuals that receives special treatment are the first 20,000 foreign nationals with U.S. Master’s Degrees or higher that apply each year. The first 20,000 U.S. Master’s Degree holders (or higher) that apply are exempt from the cap. Thus, if you are a foreign national with a U.S. Master’s Degree, you have an especially good chance of getting an H-1B visa for any given upcoming fiscal year.
How do you apply for an H-1B? Well just to be clear: your future employer is the one who has to apply for an H-1B Visa on your behalf. You will of course have to help them by providing them with the necessary information that they will need to file the application on your behalf, but they are the ones that have to apply. Your employer will start the process by obtaining a certified Labor Condition Application from the United States Department of Labor. This certified LCA will basically attest to the fact that your employer has agreed to pay the required wage for your job type, and that you as the Nonimmigrant worker will have working conditions that do not adversely affect similarly situated U.S. workers, and that your employer has provided notice to their U.S. workers. Once your employer has obtained a certified LCA, they will then submit a completed form I-129, Petition for Nonimmigrant Worker, on your behalf to USCIS. Once USCIS receives this, if you are fortunate enough to get your H-1B petition approved, then if you are in the United States you will then have this immigration status. If you are outside of the United States, you will generally have to apply to the U.S. Department of State for a visa at the nearest embassy or consulate (some nationalities may have this requirement waived), but regardless you will have to enter the United States formally before Customs and Border Protection. Assuming you have no problems being admitted, you will then be in the United States with a valid H-1B classification.
Ready to apply for your H-1B? Get in touch with us at Zontlaw, today!
H-2A and H-2B Visas:
The H-2A Visa and the H-2B Visa are for employers to temporarily bring foreign workers to the United States to do seasonal work for them. The H-2A is for temporary agricultural workers and the H-2B is for other types of seasonal work (such as seasonal resort workers, for example). To qualify a prospective employee for either of these visas, the U.S. employer will generally (some limited exceptions exist), need to first apply for a Temporary Labor Certification from the U.S. Department of Labor for the foreign worker(s). To do this they will have to show that the job being offered is temporary or seasonal in nature, that there aren’t enough U.S. workers available or willing to fill the offered positions, and that employing H-2A/H-2B workers will not adversely affect similar U.S. workers.
Once the employer receives an approved Temporary Labor Certification they will then need to submit a Form I-129, Petition for Nonimmigrant Worker, to USCIS. Then once this petition is approved, any workers outside of the United States will need to apply for a visa before the U.S. Department of State at the embassy/consulate, and/or apply for admission at the U.S. border under this classification. Once admitted as an H-2A or H-2B, the status holder will be allowed to stay and work in the United States for as much time as authorized on the Temporary Labor Certification. H-2A/B status holders can generally seek extensions in one year increments (with the submission of another Temporary Labor Certificate with each extension request), for up to a total of three years. After someone has been in H-2A/B for three years they will have to depart the United States and spend an uninterrupted period of 3 months outside of the U.S., before they will be eligible to apply for admission under an H-2A/B, again. Employees that are approved will be eligible to bring their spouses and dependent unmarried children (under the age of 21) with them as H-4s. H-4 Visa holders will not be eligible to work but can study while in the United States.
If you are a U.S. agricultural employer or a U.S. employer that is otherwise in need of temporary seasonal support from foreign workers, Zontlaw is more than capable of assisting you to get your team H-2As and H-2Bs. Do not hesitate to contact us!
How much is the filing fee for an H-1B visa?
The current cost that the USCIS charges to file an I-129, Petition for Nonimmigrant Worker, is $460 dollars. This is in addition to the cost of any legal representation you decide to obtain.
How long does it take to get an H-1B visa?
It will take a little while to get your I-129 application together to even apply, and then after your application is submitted, you can expect to hear back from USCIS about your H-1B in 2-6 months time.
How do H-1B visas for fashion models work?
H-1Bs are the primary mechanism that foreign national fashion models use to work temporarily in the United States. To obtain an H-1B visa as a fashion model, you will have to be an experienced model already. You actually need to be a successful model that can be described as well-known in your field, leading, or renowned. You will also need to be coming to the United States to fill a position that requires a model of your ability. If you have the necessary credentials, we would be more than happy to assist you with your H-1B application.
Can I file H-2A and H-2B visas for more than one employee?
Yes you can file H-2A and H-2B visa applications for many different temporary employees at the same time, using one I-129, Petition for Nonimmigrant Worker form. However, it is important to note that every worker listed on your form will require the same start and end date of employment. Additionally, it is important to consider that when using one I-129 form for multiple prospective employees, if one of the applications fails, they all fail. Also, even if your employee with the more complicated situation doesn’t result in an overall denial of your I-129, their presence on the I-129 could delay everyone else in getting approved. Thus, if you have a prospective foreign national employee with a slightly more complicated situation than your other prospective employees, you are advised to file a separate petition for the employee with the more complicated situation.
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Ready to apply for your H-1B or other H Visa? Get in touch with us at Zontlaw, today!
The H Visa process is very complicated, so the best chance of success comes by working with an experienced attorney. We know how difficult process can be, and we will be with you every step of the way. We are highly experienced in US Immigration law. Our attorneys, translators and support staff will work with you individually to give you the best chance of success possible.
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