H-1B Temporary Work Visas Still Available.

The main visa which allows people to stay and work in the U.S. is the H-1B visa for temporary professional workers. It normally requires the equivalent of a U.S. bachelor’s degree. You are correct in that you need a sponsor, but not any sponsor will do. Assuming you have a relevant degree, you need to get out there and quickly find an employer who will sponsor you for professional work. Time is of the essence, as there is a limited number of H-1Bs and the window for applying is unbelievably still open. As of press time, the U.S. Citizenship & Immigration Services (CIS) latest announcement on May 4th indicated that of the 65,000 visas released on April 1st for work start dates October 1st, only 42,000 had been used. Given the state of the economy, it just goes to show that employers only use the H-1B visas when they need workers. In 2003 the visas were opened up in October and were gone by February 2004. In 2004, the H-1Bs were released in April and gone by the end of September. Congress then decided to come to the partial rescue and added another 20,000 H-1B numbers for those with U.S. master’s degrees or higher would be eligible for the new H-1Bs which could be issued prior to October 1, 2005. In 2006, 2007, and 2008, when the economy was still booming, the visas were gone in two months, two days, and one week, respectively, and a lottery was held in 2007 and 2008 to pick the winners (the odds of winning were worse in 2008). So it looks like a good time to get rid of the arbitrary 65,000 cap which was imposed back in 2003 by a fearful Congress and let the market decide how many H-1B visas US employers really need.

As part of the deal to increase the numbers, additional fees were also added which skyrocketed the fees from the base fee of $185 to $2,185 just to file the petition. With expedited (15 day) processing the total increases to $3,185. The base fee has since gone up to $325, the anti-fraud fee is still $500, an additional fee that most employers must pay which is either $750 for employers with less than 25 employees or $1,500 for employers with more than 25 employees, an expedite fee is $1,000, and that doesn’t even take into account the fees the employer or you will have to pay an attorney to prepare the paperwork! These visas are not cheap but they are good for three years and can be extended for another three years (after refilling a new petition and paying the $320 and $750-1,500 fees). After six years of working in the U.S., the person must return home for one year prior to obtaining a new H-1B (note that there are a few exceptions to the six year limit), assuming numbers are available.

The H-1B visa is designed for professional workers coming to do professional work and it does not involve any advertising or other testing of the U.S. market for similar employees. For instance, a computer engineer with a degree in computer science who is coming to work as a systems analyst would be the classic example of an H-1B. However many H-1Bs are also used by teachers, accountants, management analysts, designers, writers, engineers, hotel managers, and many other “professional” positions.

When the petition is approved, the U.S. Embassy in the person’s country of residence issues the actual work visa. If the person is in the U.S. in another status such as a J-1 summer exchange visitor or F-1 student, oftentimes a change of status can be done which delays the embassy trip until the first time the person being sponsored departs the U.S. Note that a visa waiver (90 day visitor) cannot extend or change their status and must pick up the new visa at the embassy or consulate.

In 2005, Bill Gates, the founder of Microsoft made some comments on the H-1B program. When asked during his participation on a panel at the Library of Congress what he would do if he could make laws, Gates said “I’d certainly get rid of the H-1B cap.” He went on to comment, “The whole idea of the H-1B visa thing is, 'Don't let too many smart people come into the country.' The whole thing doesn't make sense," and he added, “If the demand is there, why have the regulation [caps] at all?”

Up until 2003 the annual number of H-1Bs was 195,000 and when I first became an attorney in the late 1980s there was no cap at all. What’s happening this year is a strong reason to get rid of the caps once and for all.

H-1Bs At A Glance.

What are H-1Bs?

• Temporary: H-1Bs are temporary foreign professionals hired by a U.S. employer.
• Highly skilled: H-1Bs can be hired only for "specialty occupations," those jobs requiring the equivalent of at least a bachelor's degree in the field.
• Professionals: H-1Bs must be professionals such as doctors, engineers, professors, accountants, lawyers, physical therapists, and computer professionals.

How Many Enter and Where Do They Come From? Under current law, no more than 115,000 H-1B visas can be issued in the next two years, with the cap dropping to 107,500 in 2001. After 2001, the cap drops to 65,000 per year. Even with these numbers, H-1B temporary professionals comprise less than .1% of the U.S. workforce of more than 127 million people. The top 5 source countries for H-1B's currently are India, China, Canada the United Kingdom, and Philippines.

Why Do Employers Hire H-1Bs?

• Needed skills and Temporary Shortages: Employers hire H-1B professionals to obtain essential technical skills or knowledge that is relatively unique and not readily found in the U.S. or to fulfill temporary shortages of needed skills.
• Global market expertise: Employers often need H-1B professionals to bring special expertise in overseas needs, markets or trends that enables U.S. businesses to compete globally.

What Must Employers Do?

• Protect wages: Employers must pay a wage to every H-1B worker that is at least as much as what is typically paid in the region for that type of work ("prevailing wage"), or what the employer pays existing employees with similar experience and duties.
• Protect working conditions: Employers cannot use H-1B professional to break a strike, and must notify their U.S. workforce when they hire an H-1B professional. Employers cannot make the H-1B nonimmigrants work under conditions different from their U.S. counterparts, including hours, shifts and benefits.
• Recruit in the U.S. and Not Displace U.S. workers: Employers who use a lot of H-1Bs must first try to find U.S. workers before they can hire an H-1B. They also must attest that they are not hiring the H-1B if they have laid off or displaced a similarly situated U.S. worker. Employers must attest to the above protections by affirmatively filing with the Department of Labor (DOL) and by maintaining a file open to the public.
• Be subject to penalties: Failure to comply with DOL regulations can result in an audit, civil and administrative penalties, payment of back wages, and even debarment from participating in key immigration programs.

How To Obtain A Professional Visa.

The USCIS has a special visa for temporary foreign professionals hired by a U.S. employer, known as the H-1B. H-1Bs can be hired only for "specialty occupations," jobs requiring the equivalent of at least a bachelor's degree in the field.They must be professionals such as doctors, engineers, professors, accountants, lawyers, physical therapists, and computer professionals, but can apply to a host of other jobs.

Under current law, no more than 65,000 H-1B visas can be issued this year.

In order to qualify, the employer must demonstrate that the position requires a professional in a specialty occupation and that the intended employee has the required qualifications. Typically, the minimum qualification is a university (bachelor?s) degree or its equivalent.Employers must also pay a wage to every H-1B worker the prevailing wage, that is at least as much as what is typically paid in the region for that type of work. Employers cannot make the H-1B nonimmigrants work under conditions different from their U.S. counterparts.

Since 1998, H-1B employers are required to pay an additional fee per visa to fund education and training programs for U.S. workers.

The H-1 visa is issued for 3 years, but can be extended up to 6 years.Presently, the processing of such visas takes between 4-6 months. As such it often is the quickest method of obtaining legal status with the right to work in the U.S. and a good alternative for persons with a university degree. WARNING: The following is article discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case. If you would like such advice from our office, call (415) 777-4445 or (916) 349-2900 or (408) 993-9737.

H-3 Training Visa Program.

There are not a lot of options for persons trying to obtain status in the United States at this time. The H-3 visa program offers one option for persons without a college degree who have an employer-sponsor. The H-3 visa allows one to come to the U.S. for on-the-job training to be provided by an American company. The purpose of the training is to further the applicant's career in your home country.

To qualify for an H-3 visa, one must have the necessary background, education and experience to complete the U.S. training program successfully. The training programs must meet the strict qualifications for such programs mandated by the BCIS (formerly the USCIS). It is therefore necessary to submit to the BCIS a comprehensive written training program.

The basic requirements of the visa are:

• Training Program. The applicant needs a specific offer to participate in a job-training program from a U.S. company. The job training must be one that will further the applicant's career abroad. The training program must have structure with a curriculum, books and study materials. BCIS will scrutinize the training program to see if it meets its standards.
• Training Is Unavailable in Your Home Country. One of the more difficult requirements for getting an H-3 visa is that the training you will receive in the U.S. must be unavailable to you in your home country.
• Qualifications. The applicant must have the necessary qualifications for the training position. This does not mean the applicant must be highly trained in the field, just that his background cannot be inconsistent with the training the applicant now seeks.
• Intent to Return to Home Country H-3 visas are meant to be temporary. At the time of applying, the applicant must intend to return home when the visa expires. An applicant must submit evidence showing that when he completes his training, he will go back home and use it there.

When a person qualifies for an H-3 visa, their spouse and unmarried children under age 21 can get H-4 visas authorizing them to stay in the U.S., but not to work there.

The H-3 program is not for everyone; but it does provide one option to try to bring your relatives to the U.S. or stay here legally, provided an employer / sponsor can be found and the training that is offered meets the strict requirements of the program.