The H1-B classification is reserved for immigrants who occupy a specialty occupation. The immigrant must be coming to the United States temporarily. Holders of the visa may have immigrant intent and that would not disqualify them from a permanent residence. We will discuss H-1B visas below.
Definition of Specialty Occupation:
A specialty occupation is defined as an occupation that requires a bachelor’s degree. The immigrant must apply a highly specialized theoretical and practical body of knowledge. The position must meet one of the following four criteria:
- A baccalaureate or higher degree or equivalent is normally the minimum requirement for the position.
- The degree requirement is common in the industry.
- The employer usually requires a degree or equivalent.
- The specific duties are so specified and complex that the duties are associated with the attainment of a degree.
A person may still apply for an H-1B visa if he or she possesses equivalent experience in the field. Two years of experience are the equivalent of one year of education.
Labor Conditions Application:
Before an employer can file the petition, it must obtain a labor conditions application (LCA) from the Department of Labor. The LCA certifies the salary an H-1B holder must receive. The employee must be paid at least the prevailing wage in the locality.
There is a cap of 65,000 visas for applicants with baccalaureate degrees. There are also 20,000 visas available for applicants with master’s degrees. In recent years, United States Citizenship & Immigration Services has received three or times more petitions than available visas. The Service has instituted a lottery system to select applicants who receive a visa number.General Information:
There are several petitions that are exempt from the cap. Applicants who hold the classification are exempt from the cap. Physicians who have received a waiver of the residency program are also exempt. Applicants with employment offer from an institution of higher learning with a research program and non-for-profit schools with affiliation with a government entity are also exempt.
Limitation on Duration:
An H-1B petition may be approved for up to 3 years but may not exceed the validity of the LCA. The H-1B visa has a maximum duration of six years, meaning that a person who has used the six years must leave the United States unless he or she qualifies for an exception. The exceptions include those applicants who are the beneficiaries of approved I-140 petitions for immigrant visas.
The limitation period does not apply to workers who are in the United States for temporary stays (less than six months). H-4 status holders may not receive extensions beyond the six years but may change the status to H-1B since the time spent in H-4 status does not count towards the six years.
Family Members (H-4):
Family members of H-1B visa holders receive H-4 status. As mentioned above, the six years limitation does not apply to them. They may receive employment authorizations while in that status.
Procedures for Obtaining H-1B Visas:
Any petitions relating to H-1B status must be filed using form I-129. The employer must include an H status supplement with the application. The employer must pay USCIS fees and must pay the prevailing wage within 30 days of approval. The government fees include the application fee, the fraud fee, and a fee of $750 or $1500 depending on the number of employees it employs. An employee holding H-1B status may transfer employers. However, the employee may not work for multiple employers without a separate petition by the new employer. The employee may begin employment with the new employer as soon as the petition is received by the United States Citizenship & Immigration Service.
Call the American Dream™ Law Office for questions relating to H-1B petitions.
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