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H-1B Visa - Temporary Employment-based Visa for Specialty Occupations

1. The H-1B Visa - Temporary Employment-Based Visa

The H-1B is a temporary nonimmigrant visa which allows alien professionals to work up to six years in the United States. An alien worker must leave the U.S. after six years in H-1B status. There are exceptions including those alien workers who have a Labor Certification pending for more than 365 days, or Form I-140 approved, or those who changed their status to H-4. A H-1B holder's time periods outside the U.S. may be reclaimed in requests for an extension. The H-1B applicant must have experience or education in a specialty occupation. 

The H-1B visa is designed to attract highly skilled professionals in a specialty occupation to work in the U.S. on a temporary basis. In an H-1B application process, the employer is the petitioner, while the alien worker is the beneficiary. The U.S. employer must offer employment in a specialty occupation, either on a full time or part time basis. A specialty occupation requires theoretical and practical application of a body of specialized knowledge.  Examples of specialty occupations include engineers, nurses, professors, researchers, computer programmers, and other professionals.

The educational requirement specifies that the alien possess at least a bachelor's degree or its equivalent.  If the applicant was awarded the degree from an institution not located in the U.S., that degree must be evaluated to determine if it is comparable to a U.S. awarded degree. If the alien possesses a U.S. degree or its equivalent, no prior employment experience is required.

If an alien does not meet the educational requirements, 'degree-equivalent' experience or training may be substituted, whereby three years of professional experience is considered equivalent to one year of college education. 

Furthermore, if a license is required under state law to practice a specific specialty occupation, the alien must hold the appropriate license. The employer must also pay the minimum prevailing wage, as determined by State Employment Agency rules or other approved standard guidelines.

2. The H Visa Classifications

The Immigration and Nationality Act provides several categories of nonimmigrant visas for a person who wishes to work temporarily in the United States. There are annual numerical limits on some classifications.

1) H-1B classification applies to persons in a specialty occupation which requires the theoretical and practical application of a body of highly specialized knowledge, along with at least a bachelor's degree or its equivalent. This classification requires a labor attestation issued by the Department of Labor. This classification also applies to Government-to-Government research and development, or co-production projects administered by the Department of Defense;

2) H-2A classification applies to temporary or seasonal agricultural workers;

3) H-2B classification applies to temporary or seasonal nonagricultural workers. This classification requires a temporary Labor Certification issued by the Department of Labor;

4) H-3 classification applies to trainees other than medical or academic. This classification also applies to practical training in the education of handicapped children;

3. The Basic Requirements to Apply for an H-1B Visa

The H-1B is a temporary employment-based visa for alien workers in specialty occupations. U.S. employer can sponsor a H-1B visa petition. The maximum stay of an H-1B visa holder is six years, but the initial request may not exceed three years. The salary of the H-1B applicant must match or exceed the the prevailing wage for that occupation.

An H-1B certification is valid for the period of employment indicated on the Labor Condition Application (LCA), for up to three years. However, a foreign worker can be in H-1B status for a maximum continuous period of six years. After the H-1B expires, the foreign worker must remain outside the U.S. for one year before another H-1B petition can be approved. Certain foreign workers with Labor Certification Applications or immigrant visa petitions in process may stay in H-1B status beyond the normal six-year limitation.

For a period not to exceed a total of six years, an H-1B visa is available to an alien employee:

1) who will be incumbent in a temporary position;

2) who will perform services in a specialty occupation;

3) the U.S. employer has obtained an approved Labor Condition Application for the alien employee.

Here, "temporary" is defined as that it is not permanent, or that it is for a definite term as opposed to an indefinite term. Also, most professional jobs are classified as "specialty occupations". 

4. The H-1B Cap and Counting

The current H-1B cap is 65,000 per year. The H-1B workers in the following situations will not be subject to the annual H-1B cap of  65,000:

1) Persons employed at a university, affiliated non-profit entity, non-profit research organizations, or government research organization;

2) Persons who have previously been counted against the H-1B quota, and extensions of stay for those already on H-1B status;

3) Physicians who obtained a Conrad 30 waiver of the J-1 two-year home residency requirement;

4) H-1B amendments with the same employer which are not requesting an extension of stay;

5) Change of employers by a person already on H-1B status; and

6) Persons already engaging in H-1B employment who are applying to work concurrently / simultaneously for an additional employer while maintaining their current employment.

5. F-1 Student Visa and H-1B Visa

A F-1 foreign student may come to the U.S. primarily to gain education, with an interest in gaining employment experience as well before returning home. To achieve this objective, the individual may initially complete studies, obtain some level of employment experience on one type of non-immigrant visa, and later change to another non-immigrant visa status, in order to live and work longer in the U.S.

The F-1 student visa, for example, enables individuals to gain education with some restrictions on their employment eligibility, both during and for a one-year period immediately after the completion of studies. Many F-1 students later change to the H-1B visa status, and work for up to 6-years in the U.S. with H-1B visa status.

6. How To Apply for an H-1B

Professional workers with at least a bachelor's degree or equivalent work experience may be eligible for this non-immigrant visa. All H-1B workers must begin with a petitioning employer. It is not possible to be a self-employed H-1B worker. The petitioner must have a legitimate job opening available, and must agree to pay the alien worker the prevailing wage for the occupation in the area where the work will be done. 

The petitioning employer begins by filing a Labor Condition Application (LCA) with the Department of Labor (DOL). When the LCA is returned with the DOL endorsement stamp, the employer may then file an H-1B petition with the USCIS. Only after the H-1B petition has been approved and change of status granted, or a nonimmigrant H-1B visa issued, the alien worker may begin working for the employer.

A Labor Condition Application serves, among other things, to ensure that the employer is not paying less than prevailing wage. The job must be one which customarily requires a bachelor's degree as a minimum entry requirement and the alien worker must either have such a degree, or equivalent work experience. As a special requirement, the employer must agree to pay the return airfare or all reasonable costs to return the H-1B visa holder to his or her home country, if employer terminates the employment prior to the expiration date of the H-1B approval notice.

 

 


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