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H1-B : WORK VISA FOR PROFESSIONALS

H1-B : WORK VISA FOR PROFESSIONALS 

Description: The H-1B visa category is for noncitizens who will work in the United States in a "specialty occupation," perform services under a Department of Defense-administered project, or work as a fashion model of distinguished merit and ability. The "specialty occupation" category is the one that refers to jobs for which the usual requirement is a U.S. bachelor's degree or the equivalent in a specific field and for which the foreign national employee has a relevant degree or the equivalent. 

Key Words: fashion model in the U.S.; H-1 category; fill permanent positions in the United States; annual H-1B quota;  obtaining H-1B status;  change jobs on H-1B; temporary working status; dual intent 

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The H-1B is an alien who will be employed temporarily in a specialty occupation or as a fashion model of distinguished merit and ability.  

A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations. 

H-1B Quota 

The number of new H-1Bs issued each year in the United States is subject to an annual Congressional-mandated quota. Each H-1B quota applies to a particular Financial Year which begins on October 1. Applications for the upcoming Financial Year are accepted beginning on the preceding April 1 (or the first working day after that date). Beneficiaries not subject to the annual H-1B quota are those who currently hold H-1B status or have held H-1B status at some point in the past six years and have not been outside the United States for more than 365 consecutive days. Extension applicants or applicants who change jobs on H-1B are excluded from the cap. Also, excluded are employees of institutions of higher education and affiliated nonprofit entities and nonprofit or governmental research organizations.  

Steps in Obtaining Temporary Working (H-1B) Status  

Obtaining H-1B status for an H-1B alien requires several steps:  

  1. Obtaining the Prevailing Wage Determination: before filing the LCA the employer must obtain a prevailing wage determination from a source acceptable to the DOL, and it must determine its own actual wage rate for resident positions at the job site where the H-1B alien will work. 

  1. Approval by the DOL of a Labor Condition Application (LCA): after determining the prevailing wage the employer may proceed to submit an LCA to the U.S. Department of Labor. 

  1. Approval by the USCIS of the H-1B Petition for Nonimmigrant Worker: the employer may submit an H-1B petition to USCIS once an LCA is approved. The employer must establish that both the offer of employment and the qualifications of the H-1B alien meet the standards outlined in the immigration law. Also, the employer must demonstrate its ability to pay the appropriate wage. 

  1. If alien is outside the U.S., obtaining an H-1B Nonimmigrant Visa at U.S. Consulate: Once your petition has been approved by USCIS, you should obtain a visa at the U.S. Consulate of your place of residence. The visa would be issued for a duration of your H1-B status. Once petition approval is transmitted, arrangements can be made to obtain the nonimmigrant visa at an appropriate U.S. consulate.  

The alien may not start working in the U.S. until the petition is approved and he has either changed his or her status to H-1B or has obtained an H-1B visa and entered the U.S.  

H-1B Employer  

H-1B aliens may only work for the petitioning U.S. employer and only in the H-1B activities described in the petition. The petitioning U.S. employer may place the H-1B worker on the worksite of another employer if all applicable rules of the Department of Labor and USCIS are followed. H-1B aliens may work for more than one U.S. employer, but must have a petition approved for each employer.  

Period of Stay 

A foreign worker with an H-1B visa can stay in the U.S. for a maximum of six years (plus extensions in certain circumstances) period. The H-1B visa is initially valid for three years and can then be extended for another three years. 

Dual Intent 

Even though the H-1B visa is a non-immigrant visa, it is one of the few visa categories recognized as dual intent, meaning an H-1B holder can have legal immigration intent (apply for and obtain a Green Card) while still a holder of the visa. There is no presumption that H1-B holder is an immigrant; no requirement to enter ”temporarily” or have a residence abroad which he or she has no intention of abandoning; and filing of immigrant petition or other indication of seeking permanent residence is not evidence of abandoning foreign residence for purposes of seeking or maintaining H-1B status. This distinction from other nonimmigrant visas is very important for H-1B nonimmigrant while applying for certain immigration benefits.  

Green Card Opportunity  

A U.S. employer may obtain permanent residence (Green Card) status for an H-1B alien if the employer can demonstrate that it is unable to locate a U.S. worker to fill the position. For the process of obtaining permanent residence through employment refer to Section “Green Card. Employment EB 1-5”.