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H-1B Visa

Are you a foreign citizen working as a doctor, lawyer, architect, computer programmer or research scientist?

Are you a professional with a specialty occupation (as mentioned above) who wants to work in the U.S.?

If you have at least a baccalaureate/bachelor’s degree and your profession requires highly specialized skills, this visa may be the right one for you! An H-1B visa is available to individual professionals who are looking to work in the U.S. for a particular employer. Every year, up to 65,000 new H-1B visas are issued, with an additional 20,000 being available to those individuals who received a master’s degree or higher from a U.S. institution of higher education.

The most important requirement for obtaining an H-1B visa is to ensure that the job qualifies as a “specialty occupation.” Specialty occupations are those that require the theoretical and practical application of a body of highly specialized knowledge, calling for completion of a specific course of higher education. Some examples of specialty occupations are computer professionals, architects, medical doctors (who have passed their USMLE exams), civil engineers, lawyers, researchers, and marketing professionals. These occupations usually require the minimum attainment of a baccalaureate/bachelor’s degree from the United States or its foreign equivalent.

HOW DOES A JOB QUALIFY AS A SPECIALTY OCCUPATION?”

To qualify as a specialty occupation, the position must meet at least one of the following criteria:

  • The minimum entry requirement for the position requires a bachelor’s degree (or higher degree), or its U.S. equivalent. In other words, the foreign national’s degree should be equivalent to at least a bachelor’s degree from the U.S.;
  • It is common for that particular job industry to have a minimum degree requirement, or the job is so complex or unique that it can only be done by someone with at least a bachelor’s degree;
  • Requiring a degree or its equivalent is a common demand of the particular employer;
  • 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 a higher degree).

WHAT HAPPENS IF A PERSON DOES NOT HAVE A BACHELORS DEGREE?

Even if a person does not have a bachelor’s degree from an accredited institution, he or she can still qualify for an H-1B visa. Under the Immigration and Nationality Act, three years of work experience in the field is equivalent to one year of education. For example, if a person did not complete their bachelor’s degree in their home country, but has been working as an architect, then three years of experience as an engineer can be used to satisfy one year of this individual’s education. Therefore, an applicant without a bachelor’s degree can still qualify for an H-1B visa if they have three years of work experience.

HOW DOES SOMEONE KNOW IF THEY POSSESS THE PROPER EDUCATIONAL EQUIVALENT OF A BACHELORS DEGREE?

For a person to know whether he or she has the equivalent of a bachelor’s degree from the U.S., the applicant must obtain a credential evaluation, available from an educational evaluation company (one that is established in the U.S.).

HOW CAN SOMEONE QUALIFY TO ACCEPT A JOB OFFER IN AN H-1B VISA SPECIALTY OCCUPATION IN THE U.S.?

For an applicant to qualify to accept a job offer in an H-1B visa position, they must meet one of the following criteria:

  • Completed a U.S. bachelor’s degree (or higher degree) required by the specific specialty occupation from an accredited college or university;
  • Completed a foreign degree equivalent to a U.S. bachelor’s degree (or higher degree) in the specialty occupation;
  • Hold an unrestricted state license, registration, or certification that authorizes the person to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment;
  • Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of his or her expertise in the specialty, through progressively responsible positions directly related to the specialty.

WHAT IS THE PRIMARY PROCESS FOR OBTAINING AN H-1B VISA?

  1. In general, the process for obtaining an H-1B visa is as follows:
  2. The first step is that the U.S. employer submits a labor condition application (LCA) to the U.S. Department of Labor for certification. The application requires that the company promise he or she will comply with various labor requirements, such as providing the employee with a fair wage and acceptable working conditions;
  3. After receiving certification of the labor condition application, the employer must then file a “Petition for a Nonimmigrant Worker” (Form I-129) with the appropriate United States Citizenship and Immigration Services (USCIS) center;
  4. Once the Form I-129 is approved, the prospective H-1B visa applicant, who is located outside of the U.S., may apply for the H-1B visa with the U.S. Embassy or Consulate abroad. At the U.S. port of entry, the prospective H-1B visa applicant must then apply to the U.S. Customs and Border Patrol (CBP) for admission into the U.S..

HOW LONG CAN STAY IN THE U.S. AS AN H-1B VISA HOLDER?

An H-1B visa is generally granted for three years. This time period may be extended, but generally cannot exceed a total of six years. If your employer terminates you before the end of your period of authorized stay, your employer will be responsible for the reasonable costs of your return to your home country. However, if you voluntarily resign from the employment before the end of your period of authorized stay, you will be responsible for the costs of your return transportation.

CAN AN H-1B VISA HOLDER HAVE THE INTENTION TO STAY IN THE U.S. PERMANENTLY?

Yes. An H-1B visa holder can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward obtaining lawful permanent residence (that is, become a green card holder), without affecting their current H-1B status in the U.S.

CAN TRAVEL ON AN H-1B VISAWHILE AWAITING PERMANENT RESIDENCE?

Yes. During the time that the application for LPR status is pending, an H-1B visa holder may travel on his or her H-1B visa. The H-1B visa holder does not need to obtain an advance parole document or request other advance permission from U.S.C.I.S. to return to the U.S.

CAN MY SPOUSE AND/OR CHILDREN ACCOMPANY ME TO THE U.S. ON AN H-1B VISA?

Yes. Spouses and unmarried children under the age of twenty-one (21) of H-1B visa holders may apply for H-4 dependent visas, to accompany the primary H-1B visa holder to the United States. The H-1B visa holder must be able to show that he or she will be able to support his or her family in the U.S. Spouses and children of H-1B visa holders are not allowed to work in the U.S.

CONCLUSION

If you are an employer looking to hire a foreign employee in a specialty occupation, or are a foreign worker working in a specialty occupation and are seeking to come to the United States, an H-1B visa may allow you to do so. The H-1B visa requires the minimum attainment of a bachelor’s degree from the United States or its foreign equivalent. United States employers must also first obtain a certified labor condition application from the U.S. Department of Labor (DOL). The H-1B visa is generally granted for three years and allows the applicant’s spouse and children to accompany them to the United States.

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