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H-1B Basics: What You Should Know About the Popular Work Visa

The H-1B visa is a work visa that allows foreign nationals with certain skill sets to live and work in the U.S. H-1B is considered a dual-intent status, which enables H-1B visa holders to pursue permanent residency (green card). It is one of the more popular visas in use today. But as is the case with all things immigration related, obtaining and keeping an H-1B can be complicated.

As a law firm specializing in immigration law, we understand the H-1B visa intimately. We can provide you with a qualified H-1B visa attorney more than capable of helping work through your employee’s case in a timely manner. In the meantime, here are the basics of the H-1B visa:

Limited Availability

The H-1B visa program is not open-ended in the sense that anyone can apply at any time. By law, the U.S. Citizenship and Immigration Service (USCIS) can only approve 85,000 new H-1B visas annually. For all practical purposes, employees need to be sponsored by a U.S.-based employer that will file the H-1B visa petition on his or her behalf.

The law favors foreign nationals with advanced degrees from U.S. institutions. However, employees may be eligible to apply for an H-1B visa they have a bachelor’s degree in the field of endeavor. Also note that the H-1B limit does not apply to educational institutions, government research organizations, and nonprofits affiliated with institutions of higher education. Such organizations can sponsor employees for H-1B visas at any time.

Eligibility Requirements

In order to be eligible for the visa, employees must hold at least a bachelor’s degree. They must also be offered what is considered a specialty occupation by a U.S. employer, and their degree must align with the job duties for the position being sponsored.

There are a number of criteria by which an employer can classify an open position as a specialty occupation. Applicable criteria may include things like specialized training and job requirements that dictate both formal training and real-world experience. Needless to say, there are various ways to meet the specialty occupation threshold.

Applying for the Visa

The H-1B visa program works on a lottery basis. Employees hoping to work for an employer that is not exempt from the H-1B limit, will need to be registered with USCIS’s new online lottery system. This typically happens in March every year. If selected, employers will then need to complete and submit the required paperwork.

Once the required petition is prepared and filed, it will take USCIS several months to adjudicate. USCIS may require additional information, in which case they will issue a Request for Evidence (RFE). The RFE must be addressed adequately in order to achieve an approval for the employee. The RFE will also likely indicate potential weaknesses in the case. It is helpful to have an experienced immigration attorney involved to improve the likelihood of an approval.

Employers also typically have the option to file H-1B petitions with premium processing. It requires an additional government fee of $2500, but will more the case to adjudication much faster than cases filed with normal processing. In many instances, cases filed with premium processing may be approved in about two weeks instead of several months. This can be especially helpful for F-1 students whose status is expiring soon, as well as those who are changing to H-1B from another status, such as L-1.

Complicated, But Not Impossible

After reading the basics of the H-1B visa process, one may be left thinking that it is too complicated. This happens a lot with companies that have not filed an H-1B petition previously. We encourage such companies to schedule a call with us. We can demystify the process and help companies work through a cost/benefit analysis to determine if H-1B visa sponsorship is right for their employee or job candidate. Obtaining an H-1B visa is complicated, but it is very achievable. We encourage companies to work with an experienced immigration attorney from day one of the process, not only to file a strong case but also to explain the company’s obligations and help it avoid liability.

A skilled H-1B attorney can help companies navigate all the requirements. They can answer questions while providing companies with sound advice.

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Categories News & Updates

Know Your Non-Immigrant Status Before Applying for an SSN

Despite what you may have heard, some non-citizens working in the U.S. still have tax obligations. In order to meet those obligations, a social security number (SSN) is required. Obtaining one can be complicated if the worker in question holds a non-immigrant visa status.

Immigration law classifies non-immigrant workers according to various occupational categories. Non-citizen social security applicants need to be aware of these classifications in order to complete their paperwork correctly. Getting any portion of the application wrong – including worker classification – only delays the approval process. Furthermore, delays create additional tax issues that can ultimately turn into a nightmare.

More Than 20 Classifications

The importance of knowing your non-immigrant status is critically important when you understand that there are more than twenty classifications. Perhaps the most well-known classification is H-1B. This applies to workers in specialty occupations who are sponsored by their employers. Those in H-1B status will need to have their job classified according to the appropriate government occupation.

Here are some of the other common classifications:

  • L-1 – Intracompany transfer employees
  • TN – Trade NAFTA workers from Canada and Mexico
  • H-2B – Temporary non-agricultural workers
  • O-1 – Foreign nationals considered to have “extraordinary ability”
  • E-1/E-2 – International investors

It is important to know that only a few non-immigrant classifications allow workers to live and work in the U.S. without the previous involvement of the employer. In most cases, employers need to at least file a petition to obtain USCIS authorization before employment can officially begin.

Starting employment before meeting all your legal obligations could result in a loss of your status to legally live and work here. The employer sponsoring your employment can guide you through the process of obtaining the correct permission, which is typically done through a law firm that supports their employees’ immigration needs. But if not, do not take any chances. Don’t just assume you can start working on the day you arrive on American soil.

Filing for an SSN

Non-immigrant workers with tax obligations can file for an SSN with the Social Security Administration. Details can be found on their website. Workers can do this independently or with the help of their employer sponsors. At any rate, obtaining an SSN obliges both workers and their employers to file the appropriate paperwork during the annual tax season.

For help filing taxes, you should seek the assistance of a tax professional. You will need to know your non-immigrant status in order to give the tax preparer the correct information. It is never advisable for you to attempt to do your own taxes. There are some mistakes that could impact your future U.S. immigration process.

If you are an employer looking to hire temporary non-immigrant workers, it is imperative that you know and understand how tax laws apply to your situation. With the current political environment such as it is, your company cannot afford to run afoul of tax laws. Know what your obligations are and make sure that you meet them.

Get the Help of an Attorney

U.S. immigration law is incredibly complex. Even something as simple as applying for a social security number can create headaches for both workers and their sponsor employers. We always recommend utilizing the services of an experienced immigration attorney regardless of how minor a task non-immigrant workers are trying to accomplish.

Immigration attorneys specialize in immigration law. Immigration is our specialty here at Graham Adair. We excel in all phases of the immigration process, including non-immigrant classification and obtaining worker visas. If you need assistance obtaining permission to live and work in the United States, feel free to contact us to arrange for a consultation.