— By Guest Author E. Adriana Kostencki, Esq.
Licensed to practice law in Venezuela and Florida, U.S.A.
U.S. employers may require the services of a foreign national to work at their company or business. Immigration laws, however, require that an individual whom the U.S. employer plans to employ or continue to employ in the United States is authorized to accept employment in the United States. If the individual is already a permanent resident (green card holder), the U.S. employer may hire that individual, but must comply with the employment verification requirements. If the foreign national is not already a permanent resident, the U.S. employer will need to file a petition so that the individual may obtain the appropriate immigrant or nonimmigrant classification.
One of the most common non-immigrant visa classifications available to foreign professionals is the H-1B visa category, which enables U.S. companies to hire foreign skilled professionals to perform services in a specialty occupation. The law defines “profession” as including, but not limited, to architects, engineers, lawyers, physicians, surgeons, and teachers. The specialty occupation requires the attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent through a combination of education, training, and work experience) as a minimum for entry into the occupation in the United States.
H-1B visa applications may be filed beginning April 1, 2013, and if approved, the prospective employee may begin work on or after October 1, 2013. There is a quota on the number of available H-1B visas of 65,000 in each fiscal year, and there is a separate annual quota of 20,000 for individuals who have earned a master’s or higher degree form a U.S. institution of higher education. Only certain employees of educational and non-profit institutions are not subject to the H-1B cap. In previous years, the quota had been met as quickly as the first day. Therefore, U.S. companies seeking to bring in foreign specialty occupation H1-B workers usually begin the paperwork process at least a few weeks in advance of April 1st, as a Labor Condition Application (LCA) with the Department of Labor must be approved before filing the H-1B application.
H-1B visas are generally approved for a period of three (3) years, and can be renewed for three (3) more years, for a maximum period of six (6) years. The spouse of the H-1B holder and/or unmarried children under age 21 are entitled to H-4 nonimmigrant classification, subject to the same period of admission and limitations as the beneficiary, if they are accompanying or following to join the beneficiary in the United States. H-4 dependents may attend school and may be eligible for student status. H-4 dependents, however, may not accept employment unless they qualify independently for a classification in which employment is, or can be, authorized.