Description

• Employers in the United States that wish to employ foreigners in professional positions for "specialty occupations" may file petitions with the USCIS requesting H-1B status for foreign national workers.

• The temporary professional visa (H-1B) allows professionals to enter the United States and accept temporary employment within their profession.

• This visa is often utilized by engineers, nurses, professors, researchers, computer scientist and other professionals as a means to gain valuable work experience in the United States while receiving a professional income.

• The visa is subject to annual quota restrictions and is often sought by foreign nationals who have completed their professional training either in the United States or abroad.

Permission to Work

• Allows professionals to enter the United States and accept employment in a professional capacity for a temporary period.

• The professional is allowed to receive a salaried income from the employer.

• The H-1B visa is granted in increments not to exceed a total stay of six years.

• Spouses and children under twenty-one years of age may be entitled to remain in the United States for the duration of the H-1B visa holder's authorized stay.
• They are issued H-4 visas and are not permitted to work as H-4 visa holders.

• The spouse and children under twenty-one years of age are permitted to attend school on their H-4 visa status.

• More than one H-1B visa petition may be in effect simultaneously, allowing the H-1B temporary professional to work for two employers during the same time period.

• Special H-1A visa classifications exist for registered nurses.

Professional

• The applicant must possess the appropriate academic degree or equivalent by experience through progressively responsible positions.

• If the applicant possesses a foreign degree, the Immigration Service may require a credential evaluation.

• There must be an employer in the United States offering the professional employment.

• The offer of employment must be to perform services within a "specialty occupation" which requires theoretical and practical application of a body of highly specialized knowledge and a bachelor's or higher degree in the specific specialty as a minimum for entry into the occupation.

• The offer of employment may be for full or part time employment.

• Where licensure is required to practice a profession, the applicant must hold appropriate licensure under state law.

• The employer must complete the Labor Condition Application procedure with the United States Department of Labor.

• The Department of Labor must approve the employers Labor Condition Application.

• The employer must agree to pay transportation cost if the employer terminates employment prior to the end of the authorized employment.

• Until the Immigration & Naturalization Service have approved the employer. s petition, the H-1B visa may not be issued.

No Work Prior to Approval

• Employment may not begin until the Immigration & Naturalization Service has issued its approval and the appropriate visa issued.

• Employers may be changed during the six year H-1B visa duration, but only after approval of the new employer and by the Immigration & Naturalization Service.

• The H-1B visa (specialty occupation) is subject to an annual numerical quota.

• The spouse and children of the H-1B visa holder are not permitted to work.

Step 1: Wage Determination Form

• The employer files a Wage Determination Form with the local (state) Department of Labor to ensure that the employer is paying "the prevailing wage" for the job and the profession.

• The Wage Determination Form must be certified by the Department of Labor.

• The employer petitioning for H-1B status must file a labor condition application 'LCA' with the U.S. Dept of Labor.

• The LCA (form ETA 9035) must be certified by the DOL before the H-1B petition is filed with the Dept. of Labor.

• The employer files with form I-129 with the USCIS. A decision is usually issued in two to six weeks.

Specialty Occupation

• An H-1B is an alien coming temporarily to perform services in a specialty occupation.
• A specialty occupation is one which requires the theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation and requires completion of a specific course of education culminating in a baccalaureate degree in a specific occupational specialty.
• The petition must be filed by the U.S. employer, and must be filed with:

• An approved labor condition application from the Department of Labor;
• Evidence the proposed employment qualifies as within a specialty occupation;
• Evidence the alien has the required degree by submitting either:
  • A copy of the person's U.S. baccalaureate or higher degree which is required by the specialty occupation.
  • A copy of a foreign degree and evidence it is equivalent to the U.S. degree, or
  • Evidence of education and experience which is equivalent to the required U.S. degree;
  • A copy of any required license or other official permission to practice the occupation in the state of intended employment; and
• A copy of any written contract between you and the alien or a summary of the terms of the oral agreement under which the alien will be employed.

• An H-1B is also an alien coming to perform services of an exceptional nature relating to a cooperative research and development project administered by the Department of Defense.
• A U.S. employer may file the petition.
• It must be filed with:

• a description of the proposed employment and evidence the services and project meet the above conditions; and
• a statement listing the names of all aliens who are not permanent residents who are have been employed on the project within the past year, along with their dates of employment.

• An H-1B is also an artist, entertainer or fashion model who has national or international acclaim and recognition for achievements, individually or, in the case of entertainers, as part of a group, to be employed in a capacity requiring someone of distinguished merit and ability
• It must be filed with:

• copies of evidence the alien or group is nationally or internationally recognized in the discipline by submitting at least 3 different types of documentation showing that the group:

• has performed and will perform as a starring or leading entertainment group in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, or contracts,
• has achieved national or international recognition and acclaim for outstanding achievement in their field as evidenced by reviews in major newspapers, trade journals, magazines, or other published material,
• has received significant national or international awards or prizes for outstanding achievement in their field,
• has performed and will perform services as a leading or starring group for organizations and establishments that have a distinguished reputation,

• has a record of major commercial or critically acclaimed successes, as evidenced by such indicators as ratings, or standing in the field, box office receipts, record, cassette, or video sales, and other achievements in the field as reported in trade journals, major newspapers, or other publications,

• has received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field,

• has received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field,

• commands a high salary or other substantial remuneration for services, evidenced by contracts or other reliable evidence;

• copies of evidence the services to be performed require a person of distinguished merit and ability and either:

• involve an event, production or activity which has a distinguished reputation; or

• the services are as a lead or starring participant in a distinguished activity for an organization or establishment that has a distinguished reputation or record of employing persons of distinguished merit and ability.

• An H-1B is also an alien coming temporarily to perform as an artist or entertainer, individually or as part of a group, in a unique or traditional art form.
• A U.S. employer or foreign employer may file the petition.
• It must be filed with:

• A description of the proposed activities and evidence they constitute a unique or traditional art form;
• Affidavits, testimonials or letters from recognized experts attesting to the authenticity and excellence of the skills of the alien or group in presenting the unique or traditional art form and explaining the level of recognition accorded the alien or group in the native country and the U.S.;
• Copies of evidence most of the performances or presentations will be culturally unique events sponsored by educational, cultural, or governmental agencies; and
• Either:
  • An affidavit or testimonial from the ministry of culture, USIA Cultural Affairs Officer, the academy for the artistic discipline, a leading scholar, a cultural institution, or a major university in the alien's own country or from a third country,
  • A letter from a U.S. expert who has knowledge in the particular field, such as scholar, arts, administrator, critic, or representative of a cultural organization or government agency, or
  • A letter or certification from a U.S. government cultural or arts agency such as the Smithsonian Institution, the National Endowment for the Arts, the National Endowment for the Humanities, or the Library of Congress.

• An H-1B is also an alien coming temporarily to perform at a specific athletic competition as an athlete, individually or as part of a group or team, at a nationally or internationally recognized level of performance
• A U.S. employer or foreign employer may file the petition.
• The petition must be filed with:

• A copy of the contract with a major U.S. sports league or team or contract in an individual sport commensurate with national or international recognition in that sport.
• Copies of evidence of at least 2 of the following:
  • Participation to a substantial extent in a prior season with a major U.S. sports league,
  • Participation in international competition with a national team,
  • Participation to a substantial extent in a prior season for a U.S. college or university in intercollegiate competition,
  • A written statement from an official of a major U.S. sports league or an official of the governing body of the sport detailing how the alien or team is nationally or internationally recognized,
  • A written statement from a member of the sports media or a recognized expert in the sport detailing how the alien or team is nationally or internationally recognized,
  • The individual or team is ranked if the sport has national or international rankings, or
  • The foreign national worker or team has received a significant honor or award in the sport.

• Accompanying support personnel are highly skilled foreign national workers coming temporarily as an essential and integral part of the competition or performance of a H-1B artist, entertainer or athlete because they perform support services which cannot be readily performed by a U.S. worker and which are essential to the successful performance or services by the H-1B.
• The foreign national workers must each also have significant prior work experience with the H-1B foreign national worker.
• The petition must be filed in conjunction with the employment of a H-1B foreign national worker.
• The petition must be filed with:

• a statement describing the foreign national worker's prior and current essentially, critical skills and experience with the H-1B;
• statements or affidavits from persons with first hand knowledge that the foreign national worker has had substantial experience performing the critical skills and essential support services for the H-1B; and
• a copy of any written contract between employer and the foreign national worker or a summary of the terms of the oral agreement under which the foreign national worker will be employed.

• LCA: 1 Day
  
• USCIS - New Petition: 3-4 Months
  
• USCIS - Transfer or Renewal/Extension: 3-4 Months
• USCIS - Premium Processing Service: 5-15 Days