Jobs in the U.S. high-technology industry continue to grow and, at the same time, there continues to be a shortage of qualified American citizens and permanent residents to fill these tech and engineering jobs. Filling the gap provides an opportunity for foreign nationals who may qualify for the H-1B visa program. The fiscal year 2007 annual cap on H-1B admissions was already reached earlier in the year, however, H-1B visas for FY2008 will become available on October 1, 2007 and applications can be submitted as early as April 1, 2007.

H-1B Specialty Occupation
The H-1B Visa program is the most common visa type used by U.S. employers to hire foreign- born professionals on a temporary basis to perform work in "specialty occupations". This program allows U.S. business to recruit and hire the best-qualified candidates from around the world, and compete on a level playing field with foreign companies in such key industries as high-tech, manufacturing, pharmaceuticals, biotechnology, and education.

An Immigration Attorney’s task is to establish that the professional falls within the category of a "specialty occupation" which requires "theoretical and practical application of a body of highly specialized knowledge" and at least a bachelor's degree earned in the United States or the foreign equivalent of a bachelor's degree. The visa is valid for six years but initially granted for three and may be renewed. There is an extension available if the alien has filed for an immigrant visa 365 days before the expiration of the six-year period.

Dependents
Dependents (spouses and unmarried children under 21 years of age) of H-1B workers are entitled to H-4 status with the same restrictions as the principal. Dependents may not be employed under the H-4 classification.

Documentation Requirements
The Employee will be required to provide the following documents:

• Resume;
  
• University transcripts and diploma (may need to be evaluated);
  
• Letters of recommendation from previous employers in the same field;
  
• Previously issued visas;
  
• Alien's I-94 card;
  
• Alien's passport;
  
• If the alien will be applying with dependents, the civil documents of all family members, including birth and marriage certificates, and the divorce decrees and death certificate where applicable.

Your Attorney can file an H-1B in the U.S. while you are in status or at the U.S. Embassy in your home country if you have not overstayed for more than 180 days. The employee also has the option to file under Premium Processing in which the US Citizenship and Immigration Services (USCIS) will provide a response within 15 business days at an additional cost of $1000. Regular Processing usually takes between 3-4 months, however this time frame depends upon the current processing times for the USCIS service center.

Eligibility Requirements:

• A bachelor's or higher degree or its equivalent is normally the minimum entry requirement for the position;
  
• The degree requirement is common to the industry or, in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree;
  
• The employer normally requires a degree or its equivalent for the position;
  
• Or The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree

Wage Requirements:
The foreign professional will be paid at or above the rate paid for a similar position at the employer's own offices, or the prevailing wage for that position in the geographic area based on the best available information.

The wage is determined by one of the following ways:

• Prevailing wage determination from the local state employment security office;
  
• Published wage survey for the occupation in the area of intended employment;
  
• Union contract;
  
• Wage rate published under the Davis-Bacon Act;
  
• Another legitimate source of wage information.

NOTE: The employer is required to provide proof of the ability to pay the required wage by providing copies of past and current tax returns and/or other financial documents.

H-1B Job Portability:
Persons previously issued a visa or otherwise provided H1-B status can now accept new employment and start working immediately before final approval of the new petition. However if the petition is denied, work authorization ceases. In order to be eligible the individual must have been lawfully admitted to the U.S., the new petition must have been filed before the expiration of the original H1-B and the individual must not have been employed without authorization in the U.S. before the filing of such petition.

The demand for H-1B workers in any particular industry varies according to the labor needs of that industry. In the high-tech sector, demand for H-1B’s continues to grow. The H-1B program continues to provide a vital source of needed talent and expertise.

About the Author: James Root

Root Law Group is a full service, exclusive immigration law firm which handles cases in all areas of immigration and nationality law. James Root, principal attorney for Root Law Group, has dedicated his entire legal career to fighting for and protecting the rights of U.S. immigrants and their U.S. employers. He is proactive in advocating reforms to the U.S. immigration laws and policies, especially those affecting professional workers and their immediate family members.

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