The H-1B Visa and the Employment based Green Card: Explaining the Difference
Among the various ways in which foreign nationals can enter and legally work in the United States are two similar but distinct pathways. First, there is the H-1B non-immigrant visa, and second is the employment based green card or immigrant visa. Some aspects of the two programs are similar and even overlap, but there are other features that are radically different. Whether you are a business that is interested in employing a qualified foreign professional, or you are a professional who is seeking to explore options for employment in the United States, this article will answer your questions regarding the two programs.
The H-1B Visa and the Employment based Green Card: Explaining the DifferenceThere is often some confusion among employers and employees alike regarding the criteria for the two programs, which unfortunately can sometimes result in failing to utilize them. Part of the motivation to write this article is the fact that most H-1B petitions must be filed in the first week of April 2017, which is coming up soon. The other reason is to provide a clear and concise explanation to employers and employees so that they can utilize the program that best suits them and not shy away from them because they have not understood the programs fully.
Don't forget the April 2017 deadline for H-1B applications! You must be ready
Employers who have their eyes set on new workers or need to file an H-1B petition for current workers will need to have their paperwork finalized and ready for submission well before the April deadline. Filing is only permitted between April 3rd and April 7th and that is for 2018 entry. In recent years the cap of 65,000 is filled very quickly. USCIS is expected to keep the filing open until the closing date and then use a random lottery to select those petitions that go on to the processing and adjudication stage.
The H-1B Employment Visa
H1BThe basic criteria for a H-1B employees is detailed in guidance issued by the U.S. Citizenship and Immigration Services (USCIS):
Requirement 1 - You must have an employer-employee relationship with the petitioning U.S. employer.
Requirement 2 - Your job must qualify as a specialty occupation by meeting certain specified criteria.
Requirement 3 - Your job must be in a specialty occupation related to your field of study.
Requirement 4 - You must be paid at least the actual or prevailing wage for your occupation, whichever is higher.
Requirement 5 - An H-1B visa number must be available at the time of filing the petition, unless the petition is exempt from numerical limits.
An H-1B visa holder is allowed to also pursue a permanent residence application while in valid H status. The H-1B visa is what is known as a "dual-intent" visa because it is one of the few temporary visas that can be held while a person applies for permanent residency. This is in contrast to some other visa categories, such as the B-1/B-2 visitor visa, which does not allow a person to enter the United States with the intent of becoming a permanent resident.
Who can apply for the H-1B visa?The applicant must be a well-qualified person who has been offered a job in the United States for a term of three years or less at the outset. If the visa is granted, it can be extended for a further three years if the employer still requires the visa holder's services at that stage.
The types of jobs that can qualify for an H-1B visa are quite broad and include those in the following fields: sciences and mathematics, information technology, engineering, architecture, medicine, business and accounting, theology and the arts, education, the law, and other fields.
The H-1B annual lottery
Each year, there is a cap on the number of people who may be granted am H-1B visa. In the last few years, the cap was immediately met on the first day. The cap at present is 65,000 a year, although this might change with the incoming Trump administration. The actual number of H-1B visas issued each year tends to be a lot higher than 65,000, as people who work at universities, non-profit research centers and government research centers are not included in the cap. In addition, the first 20,000 applicants who already hold U.S. master's degrees or higher are also not subject to the cap.
To participate in the H-1B visa lottery, applications must be submitted during the first week of April for employment start dates in the following October. An employer must obtain approval of what is known as the Labor Condition Application, or LCA, from the Department of Labor (DOL). This verifies that the employer is offering the H-1B worker during the period of authorized employment wages that are at least the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or the prevailing wage level for the occupational classification in the area of employment, whichever is greater, based on the best information available as of the time of filing the application.
As long as there is sufficient preparation time before the April 2017 filing deadline, H-1B applications can be submitted and processed in a matter of weeks. This is much quicker and less time consuming than a traditional employment based green card application. Once the employer and employee agree that they would like to pursue an H-1B visa application, the attorney needs some time to complete the LCA electronic filing. The approval of the LCA can take 10-15 days, though it can happen sooner. Then the attorney prepares and files the I-129 form with the H petition supporting documents. Applicants requesting expedited processing by USCIS can pay an extra fee for "premium processing" and receive a two-week processing turn around. Therefore, the H-1B application can be prepared, filed and approved fairly quickly. This is in contrast to the employment based green card application, which can take months in preparation, filing and approval.