PROFESSIONAL VISAS (H1-B)
Specialty Occupations, Bachelor's or Higher Degree

214(h)(1) the Immigration and Nationality Act of 1952 ("Act"), Pub. L. No. 82-414, 66 Stat. 163,
8 U.S.C. 1184(h).

(c) 1999 VIKRAM BADRINATH, P.C. All rights reserved.


Introduction

Foreign nationals who possess (1) a minimum of a bachelor’s or equivalent advanced-degree for entry into a specific occupation; or (2) a theoretical and practical application of a body of highly specialized knowledge, may be employed in the United States in the "specialty occupation" for a specific employer for a temporary period of time.

The H-1B Professional visa allows a foreign national to be employed on a full-time or part-time basis for a United States employer. It is important to understand that the Employer in the process is the petitioning entity on behalf of the alien-beneficiary. The H-1B Visa holder may work for more than one employer only if he or she has an approved H-1B petition from each employer. In addition, an H-1B visa holder may be enrolled in educational programs or higher learning provided that the same is merely incidental to the H-1B visa status.

Dependents who accompany the H-1B holder are eligible for H-4 status. H-4 status does not authorize employment in the United States for accompaning family members (e.g., spouses, children).

Generally speaking, a foreign national must possess a bachelor's degree relevant and required for the position, and a specific offer of employment from an employer in a position that requires the degree. In addition, if local or state licensure is a requirement for the position, the foreign national must possess such licensure. No prior employment experience is required. However, in some cases if a foreign national possesses "degree-equivalent" experience or training, this may act as a substitute for a bachelor's degree (or theoretical equivalent thereof). Such "degree-equivalent" experience may include advancement in employ indicating an progressive increasing in responsibility over a long period of time.

Current immigration law and U.S. INS regulations allow the H-1B visa holder to have "dual intent" with respect to his intent to immigrate to the United States. Hence, an H-1B visa holder is not required to maintain a foreign residence.

Duration

The H-1B visa is initially issued for a maximum period of three (3) years, and may be renewed for an additional period of three (3) years. The maximum duration of stay permitted in the United States for an H-1B visa holder is six (6) years. The H-1B visa holder can work for more than one (1) employer during this time, but the total-maximum stay allowed in the United States remains fixed at six (6) years. In addition, prospective H-1B visa holders should note that any time in the United States while in an H-2, H-3, H-4 and L visa shall be counted toward the six (6) year limit. Accordingly, it is not possible for an H-1B visa to extend the six (6) year maximum time period requirement by changing status to an H-4 or L visa.

Application Procedure

The H-1B visa process involves three (3) basic steps. First, the employer must obtain a prevailing wage determination from the U.S. Department of Labor ("DOL") for the occupation, or determine prevailing wage by reference to an appropriate survey. This is required so that an employer can demonstrate that any prospective employee will be paid at the normal or prevailing wage and not underpaid below U.S. standards. Second, the employer must apply to the U.S. DOL for certification of a Labor Condition Application ("LCA"). Third, the employer must file a petition with a regional U.S. INS Service Center for H-1B classification of the prospective employee on Form I-129. The petition must include a description of the job duties and requirements, and a demonstration that the foreign national’s qualifications (and/or experience) meet these requirements, as well as information about the foreign national’s current and past immigration status.

The employer must file a petition for any dependents (e.g., spouse, children) accompanying the H-1B visa on Form I-539 to be accorded H-4 non-immigrant visa status.

For more information about H1-B Professional Visas, please contact us by email, telephone, or fax or schedule an appointment to have your individual case discussed and analyzed by an attorney.