A Brief Explanation Of The H1-b Visa

H1-B Visa petitions must conform to the requirements of the Immigration and Nationality Act

. This visa is commonly used by employers in the United States. If this visa petition is approved it is granted for 3 years. The permit allows for renewal by application for another 3 year period. Workers from certain foreign countries with which the U. S. Has Free Trade Agreements there are the specific temporary worker categories of the H1B1 and the E3. The H1B visas have an annual approval limit of 65,000, unless subject to an exemption. A further 20,000 visas are available to individuals who have obtained a graduate degree or higher from a institution of higher education in the United States. H1B1 and E3 visas are limited by a capped amount as well. Whether the income earned is taxable depends if the worker can be classed as a resident alien or a non resident alien for tax purposes.

The H1B petition can only be filed by a US employer. Such an employer should have an IRS Tax identification number and an employer-employee relationship with the petitioned for worker. Most petitions are subject to annual capped amount.

Pathway to permanent residence

Companies may use this avenue to bring in foreign employees needed for assignments. Foreign students have also used this visa as a stepping stone to permanent residence. Analysis of data regarding H1Bs who later become permanent residents indicates that about half of them follow this path. Analysis of data on employment based admissions found that H worker adjustments to permanent residence status increased by 225 percent over a seven year period.

The beginning of a FY is October 1 of that year. Employers can apply as soon as April 1 of the preceding year for the FY cap, but the beneficiary cannot start work until October 1st. There has recently been a decline in the number of petitions due to the economic recession. The 2010 cap was reached by December 21. 2009, which is a much slower rate than the norm in recent years. The HI-B cap filing season opens for FY 2011 in April 1, 2010. In Fiscal Year 2008, 24,692 different employers hired at least one individual on a new H-1B petition. In 2009, Microsoft announced less than half of its applications would be for new hires. As the weak economy reduces need for workers the company said, most applications would be for current workers. There is also legislation that is likely to be reintroduced titled in 2009 as the H-1B and L-1 Visa Reform Act of 2009, that would require companies to pledge making a good-faith effort to hire Americans for a job before seeking a visa for a foreign worker. This bill is aimed at giving US workers priority over foreign workers in hiring decisions.

Application procedures

The employer who seeks to hire a foreign worker files a Labor Condition Application with the Department of Labor. The U. S. Department of Labor has the role under the law to make sure foreign workers neither displace or adversely affect incomes or the working conditions of American nationals. The Employment and Training Administration of the Department of Labor administers applications filed by employers who seek to employ foreign workers. The H1B labor attestation is a three page application form. The Department of Labor has created a new portal for accessing its electronic version of the Form. The iCert system allows employers to have accounts that will automatically fill out many of the fields in the form and allows tracking of the application once filed.

Notice requirement.

The employer is required to provide notice to American workers of its intent to hire a foreign worker. The notice must meet the terms required. It has to be supplied on or within 30-days preceding the filing of the application.

After the application is certified by the Department of Labor, an application has to be made for approval by the Citizenship and Immigration Services. The procedure of approval for H1B1 and E3 visas is not the same as that required for H1B visas in certain ways. Labor standards mandated by federal, state and local governments also apply to such workers.

Recordkeeping

A copy o the petition should be provided to the nonimmigrant worker by the time of reporting for work. The petition filed and supporting documentation also should be publicly open for viewing by a specified time. Also, payroll records of all employees have to be kept and should be available on request to the Wage and Hour Division of the Department. Payroll records have to be kept for three. Other records have to be kept up to a year past the end of the petitioned employment period.

Some Legislative background

The Immigration and Nationality Act of 1952 described the H-1 workers as aliens of distinguished merit and ability who under it were to maintain a foreign residence. Congress has since then changed the requirements. The H1 visa was split into A and B categories in 1989. The Immigration Act of 1990 established what are the main features of the visa category today. Other laws made further changes.

Alternative paths are available; even if they are not covered here. The changing demands of altering demographics hint at the possibility that these rules may be relaxed sometime in the future. A H1-B Visa allows qualified foreign workers to work temporarily in the country.

by: Tug Morris.

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