New York aims to protect immigrant workers
The Law Office of Cheryl David in New York City is an experienced employment immigration law firm with the skill and experience to help clients through all employment immigration matters, including I-765 Work Authorization, Green Card, Employment Visas, and Travel Documents. If you are in need of quality legal advice and support, contact a New York City employment immigration lawyer from The Law Office of Cheryl R. David to schedule a consultation.
“Specialty occupations” require a theoretical and practical application of a body of highly specialized knowledge in a field such as biotechnology, chemistry, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, law, accounting, business specialties, theology, and the arts, and requiring the attainment of a bachelor’s degree or its equivalent as a minimum educational qualification. The foreign worker must possess at least a bachelor’s degree or its equivalent and state licensure if required for their field. The H-1B work authorization is limited to employment by the sponsoring employer and is not transferable to another employer without the new employer filing a separate petition with USCIS. If the H-1B worker was already counted against the cap, a transfer petition is typically cap-exempt.
The duration of an employment visa stay is three years, extendable to six. H-1B visa holders who want to continue to work in the United States after six years but who have not obtained permanent residency status may qualify for one- or three-year extensions under the American Competitiveness in the Twenty-First Century Act (AC21), provided they have a pending or approved green card application. Otherwise, they must remain outside the country for one year before reapplying for another H-1B visa. There is no requirement that the individual remain for any particular amount of time in the job the visa was originally issued. This allows a person to transfer upon sponsorship to a new employer.
Though there remains a cap on H-1B visas, the statutory annual cap is 65,000, with an additional 20,000 available for workers who hold U.S. master’s degrees or higher. While the total number of H-1B petitions approved each year—including extensions and cap-exempt filings—exceeds this, only approximately 85,000 new H-1B visas are subject to the cap. Income taxation for H-1B employees depends on whether they are non-resident aliens or resident aliens. A non-resident alien is only taxed on income from the United States, while a resident alien is taxed on all income.
The H-1B visa is one of the few visa categories allowing for dual intent, meaning that the holder can apply for a green card while holding the visa. The employment-based immigration process takes many years. Consequently, many H-1B visa holders must renew their visas in one to three-year increments for continued legal status while their green card application is in process. H-1B visa holders can bring immediate family members, spouses, and children under the age of 21 to the United States under the H-4 visa category as dependents. An H4 Visa holder may remain in the U.S. as long as the H-1B visa holder does.
However, an H4 visa holder is often not eligible to work or obtain a Social Security number. H-4 spouses may apply for employment authorization if the H-1B visa holder has an approved I-140 or is eligible for AC21-based extensions beyond the six-year limit. An H4 Visa holder may attend school, obtain a driver’s license, and open a bank account. In order for the visa holder to claim a dependent on a tax return or file a joint tax return, the dependent must obtain an Individual Tax Identification Number.
The H-1B visa is a non-immigrant visa in the United States issued under the Immigration and Nationality Act. It allows United States employers to temporarily employ foreign workers in specialty occupations. If a foreign worker in H-1B status quits or is fired, they have a 60-day grace period and three options:
An employment visa can help an individual work in the United States. It is a powerful tool for those from outside countries to tap into the many opportunities in the United States and for our economy to tap some of the most talented people in the world. If you are an employer who needs more information about employee visas or a talented individual who needs help through the process, our employment immigration lawyer is ready to help. For additional information about the scope of our firm’s employment immigration practice, contact the Law Office of Cheryl R. David in New York City today.
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