Recruiters often encounter contractors that are working in the US on temporary H1b visas. It can get pretty confusing about what the different kind of visas are, what they involve and how it impacts the contractor, their family, their job, their immigration plans, etc. So we at OnContracting decided to put together a quick primer on the various kinds of visas and what they mean so you can start to get familiar with these important documents. Disclaimer: This does not constitute legal advice. Please consult Murthy, Khanna, immihelp and other online guides to learn more or an immigration attorney for your specific situation. We recommend Tahmina Watson, immigration lawyer in Seattle especially for startups if you are in Seattle.
The H-1B is a non-immigrant visa in the United States that allows US employers to temporarily employ (sponsor) foreign workers in specialty occupations. If a foreign worker in H-1B status quits or is dismissed from the sponsoring employer, the worker must either apply for and be granted a change of status to another non-immigrant status, find another employer or leave the US.
"Specialty occupation" typically means biotechnology, chemistry, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, law, accounting, business specialties, theology, and the arts, and requires the attainment of a bachelor’s degree. Authorization is strictly limited to employment by the sponsoring employer only. If the worker wants to change companies, the new employer would need to apply for a transfer and request to become the worker’s new sponsor.
Duration of stay
The visa holder is allowed to stay for three years, extendable to six years. If a visa holder has submitted an I-140 immigrant petition or a labor certification prior to their fifth year anniversary of having the H-1B visa, they are entitled to renew their H-1B visa in one-year or three-year increments until a decision has been rendered on their application for permanent residence. Under current law, H-1B visa has no stipulated grace period in the event the employer-employee relationship ceases to exist.
The current law limits 65,000 foreign nationals who may be issued a H-1B visas each fiscal year(FY). Laws exempt up to 20,000 foreign nationals holding a master’s or higher degree from U.S. universities from the cap on H-1B visas.
The United States Citizenship and Immigration Services (USCIS) starts accepting applications on the first business day of April for visas that count against the fiscal year starting in October. If there are more applications than available visas, there is a lottery system that decides whose application makes it through for that year.
Even though the H-1B visa is a non-immigrant visa, it is one of the few visa categories recognized as dual intent, meaning an H-1B holder can have legal immigration intent (apply for and obtain the green card) while still a holder of the visa.
H-1B visa holders can bring immediate family members (spouse and children under 21) to the US under the H4 Visa category as dependents. An H4 Visa holder may remain in the US as long as the H-1B visa holder retains legal status. An H4 visa holder is not eligible to work or get a Social Security number (SSN). An H4 Visa holder may attend school, get a driver's license, and open a bank account in the US.
The U.S. Department of Labor (DOL) is responsible for ensuring that foreign workers do not displace or adversely affect wages or working conditions of US workers. For every H-1B petition there must be included a Labor Condition Application (LCA) - designed to ensure that the wage offered to the non-immigrant worker meets or exceeds the "prevailing wage" in the area of employment. The LCA also contains an attestation section designed to prevent the program from being used to import foreign workers to break a strike or replace US citizen workers.