H-1B Visa
Overview
This category is for individuals seeking to enter the United States for the purpose of employment in a specialty occupation or as a fashion model of distinguished merit and ability. In order to qualify for this category the alien must be entering the United States temporarily to provide services in a specialty occupation, which requires completion of a specific course of education (usually a bachelor’s degree or higher). This category also includes Government-to-Government research and development, and/or projects administered by the Department of Defense. Entertainers, athletes and artists are excluded from the H-1B category.
Applying for H-1B nonimmigrant status involves a number of steps. First, a prevailing wage (going rate for similar U.S. workers in the occupation) must be obtained for the type of employment the beneficiary will be doing. In some circumstances, it is also necessary to obtain a prevailing wage for additional locations where the alien will be employed. Prevailing wages may be obtained through a request to the State Department of Labor. A Labor Condition Application must then be filed with and certified by the Department of Labor. Upon receipt of the certified labor Condition Application, the application for H-1B nonimmigrant status will be filed with the United States immigration and Naturalization Service on behalf of the alien. If the alien is outside of the United States he will apply for an H-1B visa at U.S. consulate abroad. If the alien is in the United States in valid nonimmigrant status, he may request a change of status to H-1B. Canadians need not attend at a Consulate/Embassy and may apply directly at the Port of Entry.
H-1B Requirements
One of the following must be met in order to qualify as a specialty occupation:
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Equivalent of a U.S. bachelor degree or higher (or, in some cases, equivalent professional experience) is the minimum requirement for entry into the position;
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The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree; or
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The employer normally requires a degree or its equivalent for the position; or
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The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree. The alien must provide evidence that he meets the qualifications of the position, as follows:
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State license for the State in which the alien intends to practice (if required by State); and
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Bachelor degree or higher in the intended field; or
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Evidence of education and experience that is equivalent to the U.S. bachelor’s degree.
Maximum Stay in the US
An initial H-1B may be granted for up to three (3) years. Extensions in increments of no more than two (2) years may be applied for up to a maximum of six (6) years. In exceptional circumstances, an additional year may be available. After the six years, the alien must live outside of the United States for at least one (1) year prior to applying under this category again.
Spouses and Dependent Children
The spouse and dependant children (unmarried under the age of 21 years) will receive an H-4 for the same time period. The spouse and dependent children may not be employed under the H-4 classification, however, they may study and participate in other activities allowed by visitors.
Dual Intent
Dual intent is permitted with the H-1B visa. This means that the alien can be in the United States on an H-1B visa and can also apply for permanent residence in the United States.