immigration attorney in Torrance

It allows employers to hire qualified  foreign workers in the U.S. in specialty occupations on a temporary  basis. The H-1B classification is for individuals sponsored by companies  working in occupations that require a bachelor’s degree or higher. The  sponsored employee must hold the relevant degree (or its equivalent)  that is necessary to work in the sponsored occupation.

The H-1B Visa process involves two major factors:

• the sponsorship by a U.S. employer and
  
• petitioning with the USCIS.
  

The  applicant must have a U.S. employer to start the process. When the  potential H-1B holder finds a U.S. employer who is eligible and willing  to file an H-1B visa on his/her behalf, the employer must file an  application for Labor Condition Certification in front of the Department  of Labor, once approved the employer will  submit an H-1B petition to  the USCIS.

Labor Condition Application. The U.S. employer  is required to submit Form ETA-9035 (Labor Condition Application). The  Labor Condition Application is mandated to be filed online through the  Department of State’s iCert Portal System. The employer must have  received an approval of the Labor Condition Application before filing  the I-129 Form.

Form I-129.  After approval of the Labor Condition Application, the employer needs  to file the Form I-129 (Petition for a Nonimmigrant Worker), filing fee,  supplementary documentation, and the approved Labor Certification  Application. The I-129 must have a completed H Classification supplement  which is located on pages 11 and 12 of the form. The petitioner is  required to ensure proper completion of the H-1B Data Collection and  Filing Fee Supplement.

Once the USCIS approves the H-1B petition  filed by the employer, the foreign worker can then get the H-1B Visa  stamped at a U.S. embassy abroad or change status if he/she is already  present in the U.S. The H-1B visa is granted for an initial 3 years  period .

Requirements:

•Position Requirements

The  job offered must be filed as a “specialty occupation.” A specialty  occupation orders for a bachelor’s degree or an advanced level of  education certification. There are distinct positions that may not  mandate a bachelor’s degree due to the complexity or particular listed  duties. However, most positions categorized under ‘professional’ require  a bachelor’s degree.
Examples of qualified positions: engineers, professors, researchers, medical, accountants, attorneys, and architects.

•Education Requirements

The  bachelor’s or advanced degree must originate from an accredited  university or college. The degree is required to relate to the H-1B  specialty position. If the degree was obtained outside the United  States, it must be equivalent to an available U.S. degree.
Work  experience is not a pre-requisite if holding a bachelor’s degree.  Education requirements may be substituted with at work experience. The  general rule for the amount of accepted work experience: 1 year required  of University = 3 years of work experience. 

•Other Requirements

1. Prevailing  Wage Determination. This is a determined average wage paid to U.S.  employees in the similar fields. The foreign professional must receive  at least the given prevailing wage.
   
2. Employment of the foreign professional will not affect U.S. working conditions in similar fields.
   
3. Employer is obligated to internally post notice of filing for H-1B.
   
4. There cannot be an existing strike/layoff/lock out within the intended field.
   
5. Employer must be compliant with public examination processes.
   
6. If  the employer terminates the foreign professional’s employment before  designated time, the employer must pay the expenses associated with  transportation back to the home country.
   
7. The employer is not authorized to grant the foreign professional employment until the USCIS indicates approval.
   

•U.S. Employer Requirements

It  is required to have the funds necessary to pay the foreign  professional. Also, the employer must provide an official job offer. An  official job offer signifies that documented evidence can be presented  to show a true business need.

H-1B Cap

Every fiscal  year, the H-1B visa is limited by an annual cap of 65,000 visas.   However, there are some applicants that are exempt from the cap.  Beneficiaries with a U.S. master’s degree or higher are exempt from the  cap if it is filed among the first 20,000 petitions available.  Also, if  the H-1B worker is employed or petitioned on behalf of an institute of  higher education it is not subject to the H-1B cap.  Related nonprofit  entities, nonprofit research, and government research organizations are  H-1B cap-exempt.

H-1B Period of Stay

As  an H-1B non-immigrant worker, you may be admitted for a period of up to  three years. Your time period may be extended, but generally cannot go  beyond a total of six years, though some exceptions do apply under  sections 104(c) and 106(a) of the American Competitiveness in the  Twenty-First Century Act (AC21). Your employer will be liable for the  reasonable costs of your return transportation if your employer  terminates you before the end of your period of authorized stay. Your  employer is not responsible for the costs of your return transportation  if you voluntarily resign your position.

Dual Intent

Most  non-immigrant classifications require aliens to prove they have a  residence abroad that they do not intend to abandon, and that they do  not have the intention to immigrate permanently to the United States.  That being the case, taking steps towards U.S. permanent residence will,  in most cases, jeopardize an alien's chances of acquiring a  non-immigrant visa or non-immigrant status. The H-1B category, however,  benefits from the doctrine of "dual intent." Dual intent allows a  non-immigrant to obtain or continue in a particular -status even though  steps may have been taken towards obtaining U.S. permanent residence.