05 Apr 2017

H-1B Visa, Relevant Aspects and Proposed Amendments

Posted in Think, Act And Win By attemptnwin On April 5, 2017

What is a Visa?

Visa is a permission to a foreign national to enter, leave, or stay for a specified period of time in a country. It is provided as an endorsement on a passport.

What is H-1B visa?

The H-1B is a non-immigrant visa stipulated by United States that allows US employers to employ foreign employees in speciality occupation on temporarily basis. The stipulations are contained under the Immigration and Nationality Act, section 101(a)(17)(H). Speciality occupation means a work that requires excellent theoretical and practical knowledge.

What are the restrictions associated with H-IB visa?

•   A bachelor’s degree or equivalent is the minimum educational qualification required to be considered under the specialty occupation (Certain exemptions are allowed)
•   Normal duration of stay is 3 years, extendable up to 6 years. (Certain exemptions are allowed). If a visa holder submits an I-140 immigrant petition or a labor certification prior to their fifth year anniversary of the H-1B visa validity, it can be renewed on 1 year increments.
•   The H-1B holder who want to continue to work in the U.S. after six years, but has not secured permanent residency status, must remain outside of the U.S. for one year before reapplying for another H-1B visa if he has not qualified for extension beyond 6 years.
•   H-1B work valid only for employment under the sponsoring employer.
•   If an H-1B visa holder resigns or dismissed by the sponsoring employer, the holder must apply for a change to another non-immigrant status, find another sponsor employer or quit the country within 60 days.
•   The normal cap stipulated for issuance of H1-B visa per year is 65,000. Fiscal year in US starts on October 1, and can be applied 6 months before start date. Hence the window for application opens on April 1. The cap gets exhausted immediately and it is always better to apply at the earliest.

What are the advantages associated with H-1B Visa?

H-1B employees are covered under Social Security and Medicare as they are required to pay both taxes as part of their payroll. If they have paid social security taxes for 10 years before leaving US, they are entitled to receive Social Security benefits even if they leave the US. Bilateral agreements of US with certain countries allow recognition of the tax paid, even if it is less than 10 years, if the foreign country has a comparable system and vice versa.

H-1B holder can apply for and obtain Green Card status, which is a legal immigration status. Green Card is a permit that allows a foreign national to live and work permanently in the US.

H-1B visa permits holders to bring immediate family members (spouse and children under 21) to the US as dependents.( under the H-4 visa category). H-4 Visa holder can attend schools, obtain driving license and remain in US as long as H-1B visa is valid.
Effective from May 26, 2015, spouses of H-1B visa holders in some categories are eligible apply for employment in US.

Recent amendments proposed by Trump administration in the case of H-1B visas

•   Non-issuance of H-1B visa to entry level programmers like diploma holders to compel companies to offer low level and mid-level jobs to Americans.
•   No more speciality occupation
•   Enhanced scrutiny on H-1B visas
•   Restriction on employment by H-4 visa holder