H-1B Temporary Employment Visa
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Who is Eligible?
The H-1B nonimmigrant visa may be issued to individuals who seek temporary entry in a specialty occupation as a professional. Some examples of “specialty occupations” include accountant, computer analyst, engineer, financial analyst, scientist, architect or lawyer. The petition can be approved with a combination of college or university course work plus three years work experience for each year of university education missing. Together this would be deemed equivalent to a four-year bachelor’s degree.
For the next fiscal year 2004, beginning October 2003, there will be a maximum of 65,000 H-1B visas issued.
How To Apply
A Labor Condition Application (LCA) is first filed with the U.S. Department of Labor (DOL). Then a Form I-129, Petition for Nonimmigrant Worker, with H Supplement, and supporting documentation including the approved LCA is filed with the Immigration and Naturalization Service (INS) Regional Service Center having jurisdiction over the city of intended employment. A fee is required and the petition must be filed by a U.S. employer. Once the INS approves the H-1B petition, it will forward the approval to a U.S. Consulate.
For those individuals seeking to perform temporary services in a specialty occupation, the petition must be filed with the following documentation:
(a) An approved LCA from the DOL
(b) Documentation that the job qualifies as a specialty occupation. A “specialty occupation” is defined as one that requires the theoretical and practical application of a body of highly specialized knowledge and the attainment of a baccalaureate degree or higher as a minimum requirement for entry into the occupation in the United States. The employer may meet this requirement by showing that the nature of the specific duties are so complex or unique that they can be performed only by an individual with the required degree, or that the employer normally requires a degree or its equivalent for the position.
(c) A copy of the alien’s U.S. college degree (bachelor’s, master’s or Ph.D.) and/or foreign degree with evidence that it is equivalent which must be evaluated and certified as a education equivalency to a U.S. baccalaureate degree or higher. Evidence of education, specialized training, or experience that is equivalent to a U.S. baccalaureate degree may also be submitted to fulfill this requirement. To determine equivalency to a baccalaureate degree in the specialty, three years of specialized training and/or work experience must be demonstrated for each year of college level education that the alien lacks. To show equivalency to a master’s degree, the alien must have a baccalaureate degree and at least five years of progressively responsible experience in the specialty.
(d) A copy of any required license to practice the occupation in the state of intended employment
(e) A copy of any written contract between the employer and the alien or a summary of the terms under which the alien will be employed if there is no written agreement.
In the event that the employer terminates the employment of the alien prior to expiration of the H-1B visa, the employer is responsible for providing return transportation of the alien to his or her last place of foreign residence.
Duration of Visa
An H-1B is approved by INS for an initial period of up to three years with a total of six years.
Section 106 contains special provisions requiring the INS to grant extensions, in one-year increments, past the six-year maximum, in cases of lengthy adjudications. This section only applies to (1) H-1B workers, (2) who are the beneficiaries of EB visa petitions or who have submitted applications for adjustment of status, and only if (3) 365 days or more have elapsed since (a) the filing of an application for a labor certification on their behalf or (b) the filing of an EB visa petition on their behalf.
Status of Spouse and Minor Children
A spouse or unmarried child of an H-1B visa holder is entitled to an H-4 visa and the same length of stay as the principal. The spouse and dependent minor children cannot accept employment, but can attend school in the United States. Servants of an H-1B visa holder can receive a B-1 visa.
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