If your small business is considering using foreign workers, then you need to become familiar with the H-1B visa, which is a nonimmigrant employment-based visa for workers coming to the United States to perform a “specialty occupation.” A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.
Applications for these types of visas are job specific, and the visa is only valid for work with the employer who files the original petition.
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 and the working conditions offered. The application asks the employer for the responsibilities, skills, and experience needed for the job.
The employer must then file the certified LCA with a Form I-129 petition plus an accompanying fee of $130. (Prior to FY2004, employers were required to submit an additional $1,000 fee to sponsor the H-1B worker, unless specifically exempt.) Based on the U. S. Citizenship and Immigration Services (USCIS) petition approval, the alien may apply for the H-1B visa, admission, or a change of nonimmigrant status.
Under current law, an alien can be in H-1B status for a maximum period of six years at a time. After that time, an alien must remain outside the United States for one year before another H-1B petition can be approved. Certain aliens working on Defense Department projects may remain in H-1B status for 10 years. In addition, certain aliens may obtain an extension of H-1B status beyond the six-year maximum period, when:
- 365 days or more have passed since the filing of any application for labor certification, Form ETA 750, that is required or used by the alien to obtain status as an EB immigrant, or
- 365 days or more have passed since the filing of an EB immigrant petition.
Because of the length of time required to process all of the necessary paperwork, small business owners are advised to begin the application process at least six months before they need the foreign workers to begin their employment.
Pay careful attention to all of the forms and applications you are filling out. By signing, the employer is attesting to the accuracy of the information that is on the forms and supporting documents.
To knowingly furnish any false information; conceal or cover up information; make any false, fictitious, or fraudulent statements or representations, or make or use any false writing or document in the preparation of a U.S. government document (or to aid, abet, or counsel another to do so) is a felony punishable by a $10,000 fine or five years in a federal prison.