H-1B option for professionals to work in the U.S.*

Living and working in the United States is the dream of many foreigners. The Visa Waiver Program permits a visa-free entry as a visitor for up to 90 days, but does not provide work authorization.

The Immigration Laws of the United States contain categories of nonimmigrant visas for the transfer of multinational managers and executives (L-1 Visa), investors from treaty countries ( E-Visa), and professionals to work in the U.S.

One option is the H-1B, which is a visa for alien who is being sponsored by an U.S. employer. The alien qualifies as a professional when he/she possesses a baccalaureate degree or the equivalent, and that the job being offered requires such a level of education. In case the alien lacks a degree, the alien can qualify if he/she has experience in the speciality. For example, engineering, medicine, accounting, law, business are speciality occupations. In addition, the employer must file a labor condition application (LCA) with the Department of Labor attesting to several items, including payment of prevailing wages for the position, which protects the US employment market. Then the employer must file a petition with the United States Citizen and Immigration Services (USCIS) and, unless exempt, pay an additional $1,000.00 fee. Upon USCIS approval, an alien can be in H-1B status for a maximum period of six years at a time, with certain exemptions to go beyond that maximum period.

Problematic is, that the H-1B Visas are subject to an annual cap. Based on the economic boom in the United States in the past and the demand for foreign qualified workers the annual cap for fiscal years 2001, 2002, and 2003 was raised to 195,000 visas. Unfortunately, since then the quota remains unchanged at 65000 per fiscal year, with exceptions for certain applicants, who do not count towards the cap. However, a recent law increased the ability of an H-1B applicant to change jobs while in the U.S., if an H-1B alien

• has been lawfully admitted to the U.S.,
• is the beneficiary of a non-frivolous petition for new employment filed before the expiration of his/her authorized period of stay; and
• has not been employed in the U.S. without authorization subsequent to his/her lawful admission but before the filing of such petition.

Then the alien is authorized to accept the new employment from the time the petition is filed until it is adjudicated. Under the old provisions, the employee had to wait for the approval, which could have taken months.

The opportunities available to individuals seeking to work or do business in the U.S.A. on H-1B are subject to the annual cap. However, the H-1B Visa is only one example of a wide range of options for the foreign entrepreneur, international executive, or professional to live and work in the United States.

This article contains only general information and does not substitute for legal advice in a particular case. For more information in your specific case you should consult an attorney practicing in the area of immigration law. The hiring of an attorney is an important decision that should not be based solely on advertisement. Before you decide ask us to send you free information about our qualifications and experience.

*The Author Ellen von Geyso, LL.M. is an attorney-at-law admitted in Germany and Florida. This article was published in FLWelt 2/2001 p. 32. and was updated February 2009.