Regardless of your feelings on the current state of the economy, it can’t be argued that it can be difficult for an employer to find the right candidate for specialized positions. That’s where the H1B visa comes in. Unfortunately, few actually understand how it works. This may be, in part, due to the United States government regularly reviewing, amending, and modifying the laws surrounding immigration.
The Basics of the H1B Visa
Employers can temporarily hire immigrant workers so long as they fill positions requiring specialized knowledge. These positions generally require a bachelor’s degree, at minimum. Fields that tend to qualify include, but are not limited to:
• Mathematics
• Engineering
• Architecture
• Biotechnology
• Chemistry
• Social sciences
• Health and medical
• Law
• Education
• Theology
Unlike other immigration applications, the H1B visa is applied for by both the immigrant and the employer. Employers are responsible for filing an H1B visa petition (form I-129), as well as a labor condition application with the United States Citizenship and Immigration Service. This, essentially, means the employer is serving as the immigrant’s sponsor. In both cases, the employer must demonstrate efforts to fill the position domestically and internally.
Congress maintains an annual numerical cap of 65,000 on the number of H1B visas that may be issued. There are exceptions, though, including the issuance of up to 20,000 additional visas for immigrants holding master’s degrees from universities in the United States. Additionally, Free Trade Agreement laws reserve visas for certain countries (including Chile and Singapore). If the reserved visas are not issued, they are added to the cap for the next year.
The H1B Visa and Dependants
The law allows for immigrants issued an H1B visa to bring their spouse and dependent children under the age of 21 to the United States. They will be issued an H4 visa, which prohibits them from working or receiving a social security number. They may, however, go to school, receive their driver’s license, and open bank accounts. In order to properly file taxes, spouses and dependents will need to obtain an Individual Taxpayer Identification Number (ITIN).
These dependents may remain in the United States as long as the H1B visa remains active. Under typical circumstances this will be three years and can be extended to a maximum of six. There are, however, several circumstances in which an exception can be made.
• An immigrant who has applied for permanent residence status may have his or her H1B visa extended for one to three years, until their application is approved or denied
• Those who have had their application for permanent residency status approved but are currently incapable of completing the final step in the process can renew their H1B visa for an
additional three years
• Certain positions with the Department of Defense are automatically granted a ten year stay
In the event that an immigrant worker does not wish to file for permanent residency status, he or she must leave the United States for a full year before reapplying.
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