The H-1B work visa

First off - In our last newsletter we promised to inform you about the H-1B work visa. We have already written about this in the past. However, some new legal developments now give us a reason to inform you again about the probably most popular work visa for the US. You can also find further information in our Visa Services section on our website, and if you need consulting in individual cases you may contact us via email under visa@americandream.de.

Preface For many employers, the H-1B visa is the best way of hiring foreign experts and bringing them to the US. The visa has always been interesting to the media because US Congress always wanted to limit the number of visas while the employer's associations always fought to have the number of available visas raised to be able to handle the increasing demand for employees.

The status allows employees to work in special areas in the US that usually require an academic degree for up to six years. What makes it different from other visas and also very attractive to employees is that it allows for a so-called dual intent. This means the visa cannot be rejected in case the applicant intends to immigrate into the US at a later point. This is usually the case for non-immigration visas, and it was for the H-1B as well until a few years ago. It is expected that the applicant will return to his home country if his immigration application is denied (remarkable really, since they don't expect the same for other non-immigration visas with a significantly shorter validity).

In 1998 the annual quota for H-1B was set at 65,000. Under the aegis of ex-president Bill Clinton a law was introduced (The American Competitiveness in the Twenty-First Century Act(AC 21)) that raised the quota to 195,000 for the years of 2001-2003 and lowered it back to 65,000 after that.

A significant advantage for the employer is that he does not need to prove that no American is available for the position. In the German literature or in the media the status is often being mistakenly confused with the process for employment-based immigration. Apart from the proof that the position requires an expert and that the applicant has the necessary qualification, the employer only has to prove that he will pay the applicant just like an American citizen and offer the same working conditions.

This usually makes it easier for a potential employer to pick you, provided you meet the above mentioned requirements for the status.

Steps toward obtaining the visa In the first step the employer has to prove that the applicants will earn at least 95% of the wages that an American colleague would be earning in a similar position (prevailing wage).

As soon as this is done the employer must file a Labor Condition Application with the US Department of Labor office in his state. (Not to be confused with the Labor Certification that is necessary for green cards.) After this has been approved it will be sent together with the petition to the INS (Immigration and Naturalization Service).

The Labor Condition Application (LCA) The Labor Condition Application is the result of a legislative initiative of 1990. This really serves two purposes - prevent wage dumping and making sure that US employees are not being exploited while foreigners are being hired at the same time. On the application information such as job description and staff description are necessary.

Petition to the INS
Your qualification

In order to qualify for the H-1B Visa, it is first of all necessary to prove that the position requires at least a bachelor's degree. Usually, you will need an academic degree for this. The necessary documents should be submitted together with the H-1B application.

Attention (!): Even though the US theoretically accepts degrees obtained outside the US, submitting merely a certified copy of your university diploma will not be sufficient. It is necessary to have your degree evaluated to match a US bachelor's degree (see wes.org).

This especially applies to non-academic degrees that can be compared to a bachelor's degree. The experts in the country and abroad that support US companies with this try to compile a balanced mix of training, work experience and further training for the INS that requires special experience. Several small companies cannot take on a project like this. Also, as a rule, one missing year of university education requires three years of work experience, so at least 12 years altogether if you have no academic degree. Training doesn't count for this.

However, there are cases that do not meet all of these requirements and are approved anyway, for example because certain training programs existed. As we have said before, it all depends on the right mix...

Fees What does an application cost? We can give you a rough estimate here, however, it always depends on the visa experts who are handling your case. The fees for the INS alone are at $1,100 at present. You can add another $1,000 if you want INS to process your application within two weeks. You have to pay another DM 99 to the consulate in your home country, per person, irrespective of their age, even for accompanying children.

The fees for the experts handling the case usually start at $3,000 and up. The German media like to say sometimes that your chances improve the higher the fees are. Of course this isn't really the case, because it all depends on the quality of the application. In any case, the company should be carrying the costs. However, for tactical reasons it might be advisable to suggest a financial burden sharing when you are negotiating your wages, in that case it might be easier for smaller companies to offer you a job.

Extension of your stay At present the maximum stay on the H-1B is six years. In case an extension is necessary (e.g. because you have to finish an important project for a company), this should not present a problem. The appropriate applications and a new LCA are all it takes. The only reservations the INS sometimes have are the time the H-1B holder has spent on this status altogether, e.g. if this is the second employment of this kind in the US.

Portability Provision A very attractive change of valid law has been introduced with Act 21 described above. For the first time, it allows changing to a new employer, something that was originally only possible on an immigrant visa. The advantage is that you can already change positions when you are submitting your application, in the past you had to wait for approval.

Consular processing After approval by the INS, the US consulate is notified of the work permit. However, this is not quite the end of the process. The applicant has to apply for a non-immigration visa for himself and his family members. The consul still has a certain limited decision-making power, he does not have to confirm the visa automatically. So this step should be well prepared as well.