Get Expert Help From a North Carolina H1B Visa Lawyer

The laws governing H1B visas are updated regularly. Any applicant considering this U.S. work visa must know the current regulations and stay informed about upcoming changes.

A successful visa application requires attention to detail and correct paperwork. That’s why it’s best to work with an H1B visa lawyer and get answers to your visa questions.

What Is an H1B Visa?

H1B visas allow foreign workers to accept U.S. jobs in specialized fields, ranging from architecture and engineering to health and medicine. It’s a logical first step toward permanent immigration for skilled workers.

To qualify for H1B visas, three criteria must be met.

1. The applicant must possess at least a U.S. bachelor’s degree or its equivalent.
2. The job opportunity must also require at least a bachelor’s degree or its equivalent.
3. A U.S. employer must sponsor the foreign worker.

A spouse and unmarried children under 21 may accompany or join the H1B visa worker as H-4 dependents. While children and young adults are not authorized to work in the United States without their own visa, they can attend school without a student visa.

Wage and Tax Information

An employer need not advertise the position before hiring an H1B visa holder. However, they must notify the employee representative of the LCA (Labor Condition Application). If there’s no such representation, the employer must post the LCA at the workplace and in the employer’s office.

By signing the LCA, the employer attests that:

- - The prevailing wage rate for the area of employment will be paid.
  - Working conditions of the position will not adversely affect the conditions of similarly employed U.S. workers.
  - The place of employment will not experience a labor dispute involving a strike or lockout.
  - The H-1 B visa holder receives benefits comparable to those offered to the company’s other employees in similar positions.

In 2004, Congress amended the program to require the Department of Labor to provide four skill-based prevailing pay rate levels for employers to use. This is the only wage mechanism the law permits that considers factors beyond occupation and location.

The law requires H-1 B workers to be paid the prevailing wage for the same occupation and location, or the rate the employer pays to similarly situated employees, whichever is higher. Other factors, such as age and skill, cannot be considered when determining the prevailing wage.

The rules for H1B visa holders filing taxes can be complex, depending on their individual circumstances. In addition to consulting a professional tax preparer knowledgeable about the rules for foreigners, consult IRS Publication 519 (The U.S. Tax Guide for Aliens).

The taxation of income for H1B employees depends on whether they are classified for tax purposes as non-resident aliens or resident aliens. A non-resident alien is taxed only on income from the United States, whereas a resident alien for tax purposes is taxed on income from both inside and outside the United States.

Persons who are in their first year within the United States may choose to be considered a resident for taxation purposes for the entire year, and must pay taxes on their worldwide income for that year. This “First Year Choice” is described in IRS Publication 519 and can only be made once in a person’s lifetime.

A spouse, regardless of visa status, must have a valid Individual Taxpayer Identification Number (ITIN) or Social Security number (SSN) to be included on a joint tax return with the H1B holder.

Duration of H1B Visas

In theory, the maximum duration of the H1B visa is six years (10 years for exceptional Defense Department project-related work).

H1B holders who want to continue to work in the U.S. after six years, but who have not obtained permanent residency status, must remain outside of the U.S. for a full year before reapplying for a new H1B visa.

There are two exceptions to the six-year duration of the H1B visa:

- If a visa holder has submitted an I-140 immigrant petition or a labor certification before reaching their fifth anniversary of holding the H1B visa, they can renew the visa in one- or three-year increments until a decision is made on their permanent residence application.
- If the visa holder has an approved Form I-140 immigrant petition but cannot proceed with the final green card step because their priority date isn’t current, they may qualify for a three-year extension of their H1B status.

Immigration Steps for H1B Visas

Because H1B visas require a U.S. sponsor, the applicant needs a U.S. employer who will pay the prevailing wage for the offered position, file the petition, and provide the supporting documents to U.S. Citizenship and Immigration Services (USCIS).

The petition process begins when the sponsoring employer files a Labor Condition Application (LCA) with the Department of Labor after obtaining the prevailing wage for the position.

Upon obtaining an approved LCA, the employer files the petition with the U.S. Citizenship and Immigration Services (USCIS).

The petition must be accompanied by documentation showing that the job is a professional or specialty occupation and that the H1B applicant is qualified for the position.

The sponsoring employer files Form I-129 (Petition for Nonimmigrant Worker) and the H supplement with the CIS office having authority over the place of employment. All employers must complete and file Form I-129W with the Form I-129 petition.

If either the employer or the applicant wishes to expedite the H1B visa petition so that an initial determination is made within 15 days of filing, they may request premium processing for an additional fee. That request is made by completing Form I-907.

After approval, Immigration will send Form I-797 (Notice of Action) to the employer. The employer then notifies the applicant and sends all required documents, allowing the applicant to apply for an H1B visa at the U.S. consulate in their home country.

Documents for H1B Employment Immigration

Both the applicant and the employer submit the following documentation for H1B visas.

- A completed visa application (Form DS 156)
- One recent 1-inch-square (37mm x 37mm) photograph for each applicant, with the entire face visible. The picture should be taken before a light background and without a head covering.
- A passport valid for travel to the United States for at least six months longer than your intended visit.
- Recent financial records or tax returns
- Form I-797 (Notice of Action)
- Copy of the approved Labor Condition Application (LCA)
- Copy of the I-129H petition (filed and approved)
- The applicant’s academic record
- An education evaluation verifying that the applicant’s foreign academic record is equivalent to a U.S. bachelor’s degree
- Resume
- Recommendation letters from previous employers (if required)
- Proof of membership in relevant trade or professional organizations
- A letter from the employer detailing the job and its requirements
- Current or updated letter confirming the intention to hire the applicant according to the terms and conditions of the approved petition
- Visa fees for obtaining an H-1 B visa vary by country.