Who is Eligible?
The H-1B nonimmigrant visa may be issued to individuals who seek temporary entry in a specialty occupation as a professional. There are a maximum of 65,000 H-1B visas issued per year. In many situations, an H-1B petition may be filed even when the cap has been reached as long as the petition indicates that the worker will start working on or after the beginning of the fiscal year. The Immigration and Naturalization Service fiscal year begins October 1 of each year.
Examples
Some examples of “specialty occupations” include accountant, computer analyst, engineer, financial analyst, scientist, architect, and various types of supervisors and managers. The petition can be approved with a combination of university education and real-world experience. Together this would be deemed equivalent to a four-year bachelor's degree. A first-time H-1B alien may not commence working for his/her sponsoring employer until the H-1B application is approved. If the alien is already in H-1B status, then under the rules of portability, the alien may begin working for the new sponsoring company upon the mere filing of the H-1B. Expedited Premium Processing is available in this category.
How to Apply
An employment-based petition begins with labor certification and proceeds through federal review and approval. The process involves multiple agencies, required fees, and employer sponsorship.
Labor Condition Application (LCA)
Filed with the U.S. Department of Labor (DOL) for certification.
Form I-129 Petition
Submitted by a U.S. employer to the appropriate Immigration Service (BCIS) Regional Service Center, along with the approved LCA, H Supplement, and supporting documents.
Filing Fee Requirement
A mandatory filing fee of $185.00 is required with the petition.
Petition Approval
Once approved, the Immigration Service forwards the approval to the U.S. consulate if the applicant is outside the U.S. or mails an approval notice if the applicant is changing status within the U.S.
Premium Processing Option
Expedited premium processing is available for eligible petitions.
Documentation Requirements
For those individuals seeking to perform temporary services in a specialty occupation, the petition must be filed with the following documentation:
- An approved LCA from the DOL.
- 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 is 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.
- 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 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.
- A copy of any required license to practice the occupation in the state of intended employment.
- 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 the 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. The maximum term of an H-1B visa is six years, including extensions.
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.
Eligibility Requirements
An alien who has a residence in a foreign country that he/she has no intention of abandoning and who wishes to come to the United States to pursue a course of study at an academic institution accredited by the INS may qualify for an F-1 visa. The alien must have a valid educational purpose for coming to the United States and must be able to support himself or herself while in the United States without working.
Financial, Language, and Intent Criteria
The applicant must have available sufficient funds and outside financial support to ensure he or she will not become a public charge or accept unauthorized employment. He or she must be proficient in English or receive training to make him or her proficient, intend to depart the United States at the conclusion of his or her studies, and be qualified to attend the particular institution. All students are given permission to be in the United States for “duration of status,” that is, for the period of time needed to complete the educational program plus 60 days.
Result
At the end of the course of study, a period of work authorization may be requested for the purpose of gaining experience in the field of study, known as “practical training.” If qualified, the student may also change non-immigrant status to a temporary non-immigrant work visa or adjust status to a permanent resident visa.
