The Law Offices of Robert Nadalin

What Are The Benefits And Limitations Of The H-1B Visas?


One key benefit of H-1B status is that the dual intent criteria which provides much more flexibility and protection for the sponsored foreign worker. H-1B status is initially issued for a 3 year term followed by another 3 year extension for a total permitted stay of 6 years. At the end of 6 years, the employee will need to depart the U.S. unless eligible for additional H-1B extensions beyond the 6 year “max” date under one of two exceptions to the max date limitation, or unless eligible for a different category of visa. Persons who are at least one year past a permanent residence “priority date” normally have options available. Persons who have obtained an approved I-140 immigrant petition also normally have options, which may include filing an additional H-1B extension or moving forward with the next step of the lawful permanent residence process if eligible to do so.

The current law provides and additional limitation by requiring that any sponsored H-1B employee must be paid a required wage rate. The required wage rate is the higher of either the “prevailing wage” in the marketplace, which is normally confirmed by an applicable salary survey number, or the “actual wage” paid by the employer in-house to other employees with similar experience for that employment.

What Are The Biggest Challenges In Getting The H-1 B Visas Approved?

The numerical cap is currently the greatest challenge to employers wishing to utilize the H-1B program. The law provides a special cap of 20,000 visas that are set aside for persons that have a US master’s degree or higher. An additional 65,000 visas are set aside for all other applicants. In most years USCIS receives 2 or 3 times the number of visas permitted under the quota. When that happens, the cap is “oversubscribed.” Per USCIS regulation, USCIS then runs a lottery process to assign the available numbers. Businesses are familiar with the need to plan ahead to work around challenges or administrative difficulties, but when trying to sponsor a key employee and the process boils down to a lottery process governed by chance, the business challenges reach an additional level of complexity. In some cases, this leads employer to look more closely into moving projects outside of the U.S. If the key employees cannot be brought to the U.S., employers sometimes need to send the work to the country or countries where the workers are available.

Is There Any Way To Expedite The H-1B Visa Petition Process?

The USCIS premium processing program allows the employer to pay an expedite fee, currently $1,225, to obtain an answer from USCIS within 15 calendar days. That program may be suspended from time to time when USCIS needs to do so in order to manage its workload or reduce backlogs.

Can My H-1B Visa Be Transferred To Another Company?

An approved H-1B petition can be transferred to another employer through the “change of employer” process. Once a person has been counted under the cap, the visa cap number can be freely transferred. For better or worse, there is nothing that the initial sponsor can do to prevent or block that.

What Is The Validity Period Of The H-1B Visa?

As noted above, H-1B status is issued in 3 year increments for a total permitted stay of 6 years.

The visa stamp place the passport may also have limitations based on the “reciprocity schedule” agreed to between the U.S. and the employee’s home country. In many cases, the visa stamp will be issued for a full 3 year term, although some counties provide a much shorter limitation, which can be as short as 90 days. The visa stamp only governs return from travel abroad and should not limit the amount of I-94 status time that the employee receives upon arrival in the U.S.

Are H-1B Workers Required To Pay Taxes In The United States?

With tax matters we always advise clients to check and double check with their tax attorney or CPA. It has been our experience that almost all persons admitted to the U.S. in a work authorized visa category will be considered a US resident for tax purposes. The U.S. has certain “totalization” and “equalization” treaties in place with many countries to prevent double taxation. The employee’s tax attorney or CPA will be able to confirm what tax documents must be filed and what taxes may be required to maintain compliance under the applicable tax laws in the U.S.

For more information on Benefits & Limitations Of H-1 B Visas, please feel free to call (619) 234-8875 today.

The Law Offices of Robert Nadalin

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