Important Terms and Facts About Getting the H1B Visa

Making it to the land of opportunity is a strenuous and difficult process, which not many have the chance of completing. Hence, in this post, we talk about what you should know while applying for an H1B Visa to work in the States, along with a few tips for you to keep in mind to increase your chances of earning one.

Facts and Tips About Getting the H1B Visa

What is Dual Intent?

Dual intent is a concept in the United States immigration law, which states that certain US visa programs permit foreign citizens for a temporary stay in the US with a lawful status given to them along with immigrant intent.

A dual intent permitting you to look for a legal permanent residency through a green card when you enter as an immigrant. Or else, a visa holder can only be accorded an immigrant status and be excluded at the port of entry.

Certain grounds call for deportation, refusal of visa application, refusal to enter the border, or refusal to re-admit the foreigner based on the Department of Homeland Security reviews in cases of misrepresentation of the visa holder, which may lead to your visa being terminated. However, if you hold a dual intent visa, your immigration status is liable to be reviewed each time you visit the US.

 

Not all foreign nationals are accorded a dual intent visa. According to the Immigration and Nationality Act, H-1B visas with H-4 dependent visas, K visas( fiancees/ foreign spouses of US citizens and minor children), L visas (corporate transferees & families), and V visas (spouses and minor children of green card holders) qualify for a dual intent visa. Moreover, according to Federal laws, these visas are also considered:

  • O visas include workers who have extraordinary abilities and their families.
  • P visas are mainly for athletes, artists, entertainers, and their spouses and minor children.
  • E visas are for foreign traders and investors in a treaty with the US government investors and their families.

Among the visas not being allowed a dual intent include H-2B workers visa, H-3 trainee/worker visa, B-1 business, B-2 tourist, VWP visitor, F-1 student, J-1 exchange visitor, M-1 student, journalism, and entertainer visas. If the Consulate gets any indication of their intention to settle in the US permanently or look for a green card, this may lead to the cancellation of their application and denial of their entry to the US.

Labor Condition Application

A Labor Condition Application (LCA) is a petition which is filed by recruiters for their employees who have applied for work authorization under a non-immigrant category, mainly the H-1B, H-1B1 (which is the work visa program for citizens of Singapore and Chile), and E-3 (which is a work visa for citizens of Australia).

The petition is accepted by the United States Department of Labour Employment and Training Administration (DOL ETA)’s Office of Foreign Labor Certification (OFLC). For this petition, the form used is the ETA Form 9035.

Other Documents

There are four attested documents required for this form, which is provided by the recruiter. These attestations are mentioned in Section F of ETA Form 9035.

Earnings

The recruiter is required to provide documents to prove that the non-immigrant employee will be paid a wage at par or surpassing the value of the following categories:
-The actual wage: Remuneration provided to employees working in the same organization at the same job designation.
-The prevailing wage: The defined value of remuneration in that particular area.
Even the non-wage incentives should be provided in the documents.

Work Environment:

The recruiter needs to give in writing that he will ensure equal treatment of the immigrant worker compared to the US citizens working there and that his enlistment will not have any negative effects on anyone.

Strikes, Lockouts, and Work Stoppage Scenarios

If there are any strikes or stoppage of work or a lockout in the organization, that too after the petition is submitted, the ETA should be informed of this within 3 days of the said lockdown. The petition won’t be processed further until this stoppage has been discontinued.

A Copy of the Petition Should be Provided to the Workers.

The application is submitted through an online iCERT process and takes 7 days for approval. This application’s validity is for 3 years for H1B and H1B1 and 2 years for E3 visas.

What is a Golden Visa?

The Golden Visa program is a favorite among investors wanting to set foot in the US. It also serves as a helpful immigration tool for those looking for permanent residency in the US. It is a part of the EB-5 visa program meant for people who want to invest in the US economy while attaining a permanent residency in return.
This visa scheme was introduced as a part of the US Immigration Act 1990 but has gained more popularity recently with the controversy regarding the H1B visa.

It includes investors in the following realms:

  • A single proprietorship
  • Partnership
  • Holding company
  • Joint ventures
  • Corporations
  • Business trust
  • Other entities, which may be owned publicly or privately.

This visa program had an annual slot of 10000. It was initially unpopular, but the fiscal deficits worldwide fueled it considerably. Since then, it has fulfilled its purpose of contributing to the US economy and generated considerable profits and job opportunities.

But this visa program is under criticism from many experts as it allows immigrants to misuse it for purposes like terrorism, investment frauds, and money laundering. Moreover, the number of applications has increased monumentally, leading to a huge backlog of pending petitions.

After the EB5 petition’s approval, a conditional green card is provided to the applicant and the dependents, which is valid for 21 months. A permanent one can supplement this green card after the applicant proves to the consulate that they generated at least 10 jobs in the US during their stay.

H-1B Visa for Entrepreneurs

If you’re an entrepreneur and wonder if you can apply for an H1B visa since the EB5 visa may be too expensive a choice for you, the answer is yes, you can. With the popularity of the H1B visa surging in the US at an unprecedented rate with record-high petitions reaching the Consulate, the USCIS has now started to accept H1B petitions filed by a US-based company which is formed and is under the ownership of a Visa beneficiary. This is called the H1B visa for entrepreneurs.

As it goes with the rest of the visa applications under the H1B scheme, this category requires a valid employer-employee relationship and proof of the same. This can be done with the help of an experienced immigration lawyer.
This visa program can be used by all people qualifying for the specialty occupation category who want to set up their entrepreneurial ventures in the US. But you have to follow the specifications that will prevent any adverse effects on the existing US employees who may be affected by foreign nationals’ employment.

The following conditions need to be followed for this visa category.

  • A four-year degree in a recognized institution or its foreign equivalent in a specialized occupation.
  • Possession of an unrestricted license and certification that legitimizes the execution of the job in the native country.
  • Possession of assets amounting to a minimum of 100000 dollars.

You can also apply for an E2 visa, but that visa is applicable for only the countries that have signed the treaty for employment and cooperation with the US government, while the H1B visa is for citizens worldwide.
This visa program has the same duration as the H1B visa, which is 3 years and has a further 3-year extension. You could also apply for permanent residency by filing for a green card as the H1B visa has a dual intent nature.

Which Companies Might Receive Fewer H1-B Visas?

Seven Indian multinational companies based in the US received fewer visa approvals in 2016 than their records in 2015, reporting a 37% decrease collectively, as per a new report. This is most likely to continue in the next fiscal year, along with a drop in the number of petitions. This report has been drafted by the National Foundation for American Policy—a Washington-based non-profit think-tank.

This can be attributed to shifting these companies from the workforce to automation, artificial intelligence, and cloud computing technologies while also hiring more local talent for their positions. Critics highly exaggerate the job loss situation, but when talking about the few 10000 workers in a job market of 160 million, the argument reaches an illogical high.

This report lists the approved H1B petitions for Tata Consultancy Services to have declined by 56 percent from 4674 to 2040 in the 2016 fiscal year. Wipro recorded a decline of 52 percent with a drop from 3079 petitions to a mere 1474 in 2016. Even Infosys has seen a decline of 16% in its H1B visa petitions from 2830 to 2376 petitions in 2016.

Immigration experts argue that the current job crisis can’t be blamed on foreign workers’ appointment as the percentage of them in US companies bears a minuscule proportion. Moreover, emphasis needs to be laid more on job creation rather than job replacement. Openness to foreign workers is imperative in today’s economic and global scenario to accelerate all sectors’ growth.

Moreover, Code.org has reported that the statistics for visa approvals may be misleading as the Department of Labour in the US has recorded duplicate petitions by the same person who might create a grim situation for the current Cabinet.

 

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