We focus on professionals who want to work in the United States for a specific period of time. Such professionals would be classified as non-immigrants and would most probably require an H-1B visa. Attached to this issue is a list of non-immigrant visas and their definitions, including information relating to other categories of H visas.
Our law firm has successfully filed thousands of H-1B visas for clients both present in the United States and absent from the United States. Both our staff and clientele continue to grow. We have a team of full-time professionals working on H-1B visas. Please feel free to contact our office if you have any questions regarding the above.
Who is eligible to apply for an H-1B Visa?
Persons wishing to apply for an H-1B visa must have a job offer in a position regarded as "Specialty Occupation," defined as:
"an occupation that requires (a) theoretical and practical application of a body of highly specialized knowledge, and (b) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent*) as a minimum for entry into the occupation in the United States" [INA§214(i)(1), 8 USC § 1184(i)(1)].
* If you do not hold a university degree, but you have been offered a job which normally requires a degree, and you have one of the following, you may still be eligible to apply for this visa:
- Three years of progressively more responsible training and/or work experience in a specialized area for every one year of university studies needed (four years of university studies are generally required);
- Certification or registration from nationally recognized professional associations for the specialty;
- An evaluation by a college/university official authorized to grant credit for training and/or experience in the specialty; or
- The results of college level equivalency examinations or special credit programs.
The H-1B visa is job-specific. This means that you must have a job offer, and the position offered must require your qualifications and/or skills. To qualify for an H-1B visa, you must satisfy the following requirements:
- A bachelor’s degree or a higher degree (or its equivalent, depending on the job offer) and;
- This degree must be the degree usually required for this particular position, or the specialty occupation is so complex, it requires such a qualification or the employer must normally require this degree or its equivalent for this position, or the position involved is so complex that such a qualification is required.
- You must have a valid license if the position requires one, e.g. physician, pharmacist, etc.
How do I apply for an H-1B Visa?
You must have a job offer. You do not necessarily have to be present in the United States to apply for the visa. However, both you and your employer will be involved in the process. Our office can look after the process, causing little inconvenience to both the employer and prospective employee.
1. Labor Condition Application:
The employer concerned files a Labor Condition Application with the Department of Labor. Usually this is returned within 7-21 days. (The primary purpose of this initial step is for the Department to ensure protection of the US workforce). Therefore, the employer must be willing to pay the prospective employee the same rate of pay as he would if he were hiring a United States citizen. Employers are prohibited from employing foreign nationals on H-1B visas during strikes, lockouts, etc. The employer must provide the prospective employee with a copy of the Labor Condition Application.
The employer must post the Labor Condition Application prominently at the place of employment. This notification must also explain that any complaints regarding the Labor Condition Application can be filed with the Department of Labor.
2. Filing of the H-1B Visa:
Once the Labor Certification Application has been signed by the Department of Labor, the H-1B visa may be applied for at the Immigration and Naturalization Service. This involves completion of Form I-129 and an H Classification supplement.
If you are not in the United States during this time, the approval notice of the H-1B visa may be cabled upon request to a United States Consulate abroad.
If you are in the United States during this time, the approval notice will be sent to the employer (or an attorney, if one is representing you). In many instances, you will not have to leave the country. If, however, you decide to travel outside the United States while on this visa, you must get this visa stamped on your passport. This can sometimes be done at a United States Consulate in Canada or Mexico. You can always apply for the stamp at the United States Consulate in your home country.
The H-1B visa allows one to work only on the job and for the employer for which it was petitioned. You may also apply for a Social Security Number.
The H-1B visa can be valid for up to an initial period of 3 years. You may apply for an extension totaling another 3 years. If, however, you wish to change jobs, you have to go through the whole procedure again.
By law, the United States allows up to 65,000 foreign nationals to enter the United States on an H-1B visa for each fiscal year.
H-4 Visas for Spouse and Family
If you have succeeded in obtaining an H-1B visa and you want your spouse and family to join you in America, they may apply for an H-4 visa. This visa will allow your family to live in the United States for the same period of time as the principal alien on the H-1B visa. However, the spouse and/or children may not work on this visa, but may obtain an education while in the United States. The alien may apply for a driver's license. Persons on an H-4 visa are not eligible to apply for a Social Security Number. Health insurance may be provided through the employer of the spouse on the H-1B visa. A holder of an H-4 visa may apply to change status. For example, if the spouse gains employment, he/she may apply for an H-1B visa in his/her own right.
Other Categories of H Visas
Like the H-1B visa, you must have a job offer as the main criterion for applying for this visa. This visa allows fully qualified registered nurses to come and work as nurses for a maximum period of 5 years. An applicant must have a Nursing Certificate and a full and unrestricted license to practice nursing in the same country, or evidence that the nursing education was obtained in the United States or Canada. The applicant must provide evidence that he/she has passed the examination by the Commission on Graduates of Foreign Nursing Schools (CCFNS), or has a permanent license to practice as a registered nurse in the state of intended employment. The applicant must also be able to substantiate his/her qualifications and eligibility to work immediately upon entering the United States.
This classification expired on 1 September, 1995 but extensions until 30 September, 1996 were available to people previously in that status.
H-2 Temporary Workers:
- H-2A Visa: This visa is limited to Temporary or Seasonal Agricultural Workers. Such workers must intend to provide agricultural services which are unavailable in the United States.
- H-2B Visa: This visa is specifically for Temporary Nonagricultural Workers providing services which are not already available in the United States.
Regarding all H-2 visas, the applicant must be coming to the United States temporarily, and, in doing so, must not deprive any United States citizen of a job. Labor Certifications for these visas are required.
From the employer’s point of view, the position being offered may be one of the following:
- A one-time occurrence;
- A Seasonal Need;
- A Peakload Need;
- An Intermittent Need.
- H-3 Visa: This visa accommodates Temporary Trainees who have been invited to come to the United States for the purpose of receiving training. To qualify for this visa, the applicant must provide evidence that the training he/she requires is not available in his/her home country.
The H-3 visa may be valid for a period of up to 2 years.
Note: Unlike the H-1B category, persons seeking any other kind of H visa must provide evidence of a residence abroad, which they have no intention of abandoning. They must also provide other evidence proving their departure from the United States, upon expiration of their visa.
All H visas require completion of Form I-129.
One may only work for the employer who petitioned for you. Any other work is deemed illegal.
For assistance with your H visa needs, or for more information on which visa is best for your circumstances, contact our office today!