H-1B continued …


H-1B continued …

TECHNICAL REQUIREMENTS

There are several technical requirements to an H-1B visa case. An LCA (Labor Condition Application) must be prepared and a wage survey must be completed. The government has set guidelines as to how much you should be paid, and each job title is dependent on the particular county in which you will work.

The LCA demands that an employer pay you at least what other people in a similar position are being paid. If your employer is highly dependent on H-1B’s or is a willful violator, he or she or it must follow a different set of requirements when the LCA is filed.

The amount you make is classified as wages in that they are labeled ‘earnings’ for income tax and FICA (Federal Insurance Contribution Act=Unemployment Insurance). Fringe benefits are not included within the wage rate. Also there cannot be a strike or lockout in progress, and this is attested to in the LCA.

A final important issue is that the employer must have a Federal Tax Identification number, which is basically a Social Security number for a business, in order to file. If your employer is a small or new business, you need to advise them to get this number as soon as possible; sometime they are able to get this number over the phone.

H-1B CAP

There is a limit on the number of H-1B visas issued. The limit is set at 65,000 visas per fiscal year. The USCIS’s fiscal year goes from October 1st to October 1st. The cap does not apply to renewals, but only applies to new cases. Someone who is employed with employer ‘A’ and then applies for an H-1 with employer ‘B’ will not count against the cap either. Other people whose H-1B visa does not count against the cap include:

A. Those who work at higher education institutions.

B. Those who work for non-profit research organizations;

C. People who work at a government research organization; and

D. Those of foreign descent that had J-1 visas and were issued a waiver through what is known as the State 20 program.

Spouses and children who apply for derivative visas do not affect the cap. A derivative visa is a visa that ‘gets’ or derives its status from the primary visa. For an H-1, the derivative visa is known as an H-4, and this is what spouses and children are issued.

PERMANENT BUT TEMPORARY POSITION

The position waiting for you needs be a permanent position that is temporarily available.

PORTABILITY

The H-1 offers a fantastic feature that was not available short time ago. Now once you file a new legitimate case for a new employer and it is received by the USCIS, you can begin working for the new employer. Note, that you have to be with the new employer prior to your H-1B visa expiring with your original employer.

WHAT TYPE OF POSITION CAN IT BE?

There are numerous positions that have been permitted and many other positions have cases to support them. This list is so large that it cannot possibly be reproduced here, but here are some of the most common positions that people ask about and are included:

Acupuncturist; Chiropractor; Dietician; Graphic Designer; Interior Designer; Journalist; and Medical Technologist.

The standards do, of course, apply to positions such as teachers, lawyers, accountants, engineers, and so on, but list above are some of the interesting ones people ask about. Know though, that is some of these positions, you are required to be licensed in the specific state or area you are in, and that must be followed.*