H-1B VISAS

July 30, 2014


If you manufacture a product or sell to manufacturers you know finding qualified and skilled talent can be a real problem.    According to Logistics Management:

  • Eighty-two percent (82%) of manufacturers surveyed plan to increase US-based production over the next three to five years.
  • Seventy-five percent (75%) report significant shortages of skilled personnel.
  • Eleven percent (11%) estimate a drop in earnings due to the lack of skilled personnel.
  • The US Department of Labor reports that average of manufacturing labor is forty-four (44) years of age as of 2011.  This means a large number of workers will be thinking about retiring over the next few years.  They will have to be replaced.
  • Nearly ten percent (10%) of the companies surveyed spend on average $5,000.00 to train an individual.

With this being the case, more and more companies, universities and research firms are turning toward H-1B visas and possible employment for non-US citizens.  Applying for a non-immigrant visa is generally quicker than applying for a US Green Card; therefore, the H-1B visa is popular for companies wishing to bring in staff for long-term assignment in the US.

The following information is derived from the US Citizenship and Immigration Services web site, the WorkPermit.com web site.   Let’s take a look at H-1B visas and what is involved.

WHO IS ELIGIBLE:

Requirement 1 – You must have an employer-employee relationship with the petitioning U.S. employer.

In general, a valid employer-employee relationship is determined by whether the U.S. employer may hire, pay, fire, supervise or otherwise control the work of the H-1B worker. In some cases, the sole or majority owner of the petitioning company or organization may be able to establish a valid employer-employee relationship, if the facts show that the petitioning entity has the right to control the beneficiary’s employment.

Requirement 2 – Your job must qualify as a specialty occupation by meeting one of the following criteria.

  • A bachelor’s degree or higher degree or its equivalent is normally the minimum requirement for the particular position;
  • The degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor’s degree in a field related to the position;
  • The employer normally requires a degree or its equivalent for the position; or
  • The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

 

Requirement 3 – Your job must be in a specialty occupation related to your field of study.

This may seem obvious but there has been some confusion relative to this requirement. There are other work-visa types a non-citizen can apply for but an H-1B visa is very specific to profession vs. need.

Requirement 4 – You must be paid at least the actual or prevailing wage for your occupation, whichever is higher.

The prevailing wage is determined based on the position in which you will be employed and the geographic location where you will be working (among other factors). The U.S. Department of Labor (DOL) maintains a database with applicable current prevailing wage levels based on occupation and work location.

Requirement 5 – An H-1B visa number must be available at the time of filing the petition, unless the petition is exempt from numerical limits.

The H-1B visa has an annual numerical limit, or cap, of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization are not subject to this numerical cap.  Cap numbers are often used up very quickly, so it is important to plan in advance if you will be filing for an H-1B visa that is subject to the annual H-1B numerical cap. The U.S. government’s fiscal year starts on Oct. 1. H-1B petitions can be filed up to 6 months before the start date, which is generally April 1 for an October 1 start date.  Even though the H-1B visa is a non-immigrant visa, it is one of the few US visa categories recognized as dual intent, meaning the H-1B visa holder can apply for and obtain a US Green Card while in the US on an H-1B visa. If you are still in the US on an H-1B visa and wish to remain in the US for more than six years, you can apply for permanent residency in the US to receive a Green Card. If you do not gain permanent residency prior to the expiration of your H-1B visa, then you must live outside the US for at least one year before reapplying for another H or L visa.

Personally, I wish we could fill all engineering and manufacturing positions with “home-grown” citizens but if you look at graduation rates for individuals working within the STEM (science, technology, engineering and mathematics) professions, you can see the numbers do not support current needs and certainly will not support significant growth.  H-1B will probably be around for a long time.

 

I welcome your comments.

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