H-1B Visas and Roving Employees

1. H-1B Visas and Roving Employees

2. What is a roving employee? A roving employee is a person that works off-site from the main base of operation relative to the employer. In most cases, a roving employee is considered to be an employee who works in multiple locations and constantly jumps from worksite to worksite.

3. What is a H-1B Visa? The H-1B visa is a non-immigrant visa. It is designed to allow U.S. employers to recruit & employ foreign professionals in specialty occupations to work in the USA for a specified period of time.  The H-1B program provides the opportunity for foreign workers in specialty occupations to legally live and work in the US for a total of 6 consecutive years, and entitles their spouse and children (under the age of 21) to accompany them and legally live in the USA on an H-4 visa (although their spouse and children cannot work unless they obtain their own work visa). If an employer is willing, the employer can sponsor an H-1 visa foreign employee to apply for a green card.

4. Requirements Foreign workers must possess at least a bachelor’s degree or its equivalent (this requirement can usually be met by having a 3-year degree and 3 years of relevant post-graduate experience). H-1B visa qualifying occupations are typically occupations requiring highly specialized knowledge in a field of human endeavor, including but not limited to: IT, Architecture, Engineering, Mathematics, Physical Scientific Research, Social sciences, biotechnology, HealthCare/Medical, Education, Law, Accounting, Business, Theology, Arts, Computing, Finance, Accounting, Banking, Marketing, Sales, Recruiting, and Telecoms.

5. Eligibility The job must meet one of the following criteria to qualify as a specialty occupation: • A Bachelor’s degree or higher; or its equivalent • The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree. • The employer normally requires a degree or its equivalent for the position • The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s degree or higher To qualify to accept a job offer in a specialty occupation one of the following criteria must be meet: • Have completed a US BA/BS or higher degree required by the specific specialty occupation from an accredited college or university. • Hold a foreign degree that is the equivalent to a US BA/BS or higher degree in the specialty occupation. • Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment. • Have education, training, or experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

6. H-1B and The Employer In the H-1B petition process, the employer is the petitioner, while the foreign worker is the beneficiary. Foreign individuals can not apply for an H-1B visa to allow them to work in the US. The number of H-1B visas issued each year is subject to an annual cap that is determined by the US Congress. Once an employer has brought a foreign worker to the U.S. on an H-1B visa basis, if the company should dismiss that worker before the expiration of the visa, the company is liable for any ticket costs that the worker incurs travelling back to his/her last foreign residence. This provision is dependent on dismissal and is not relevant if a worker chooses to resign.

7. Rights and Restrictions H-1B Visa Restrictions and Limits: • 65,000 visas are issued every year • 20,000 visas issued for those with a US Master’s degree • Non-profit organizations are excluded from the annual cap • Higher education institutions are excluded from the annual cap • H-1B visas are issued for a maximum of 6 years Employee Rights: • Vacation • Sick leave • Maternity leave • Paternity leave • The Spouse may enter on the H-4 visa

8. The Benefits • Applying for a non-immigrant visa is generally quicker than applying for a US Green Card, therefore the H-1B visa is popular for companies wishing to bring in staff for long-term assignment in the US. • One of the privileges of the H-1B visa, as opposed to many other nonimmigrant visas, is that it is a ‘dual intent’ visa. In other words, under the terms of the H-1B visa, the alien employee can also apply for a Green Card and become a permanent resident, and the H-1B visa will not be denied or invalidated.

9. In Closing The H-1B is a very beneficial visa for those who qualify for it. Obtaining one is not difficult but understanding what the H-1B entails and the process involved in acquiring one within a timely manner can be a bit of a challenge at times. It is always a good idea to seek legal guidance in order to ensure that there are no missteps in the process of obtaining an H-1B visa.

10. Contact Us Attorney Samira Recob has extensive experience in all aspects of Immigration Law, including employment-based and family-based immigrant visa petitions as well as all types of applications for legal permanent residency, nonimmigrant visa petitions and naturalization application. She has represented major public and private corporations, start-up technology companies, research scientists, IT workers, prestigious academic research institutions and individuals sponsoring family members and citizenship candidates. For more information visit us at http://www.recoblaw.com.