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H-1B Visa- Immigration specialists from New York

Mec. Darius A. Marzec     January 28, 2014

Individuals can come as non-immigrants to work temporarily in the United States. One type of visa that is available to them is the H-1B Visa.

The H-1B Visa is available to workers in specialty occupations (H-1B), Free Trade Agreement workers in special occupations from Chile and Singapore (H-1B1), persons working in research and development projects for the Department of Defense (H-1B2), and fashion models of distinguished merit and ability (H-1B3).

There is a worldwide annual quota for H-1B Visas. Within this quota, a certain percentage is reserved for the H-1B1 Visa holder. There are some employers who are exempt from the quota system.

Dependent spouses and minor children of H-1B Visa holders are eligible to accompany the temporary worker with an H-4 non-immigrant visa. For purposes of this article, focus will be on the H-1B Visa for specialty occupations.

Requirements for H-1B Visa

  • A job offer in a specialty occupation by an employer that is an entity organized as an individual, a partnership, corporation, or an organization
  • Capability to work in a specialty occupation
  • Qualifications required is a minimum of a bachelor's degree or equivalent experience; Entry into the United States is temporary
  • The H-1B Visa worker will need an employer who will need to obtain a certification from the Department of Labor (DOL) that a Labor Condition Application (LCA) has been filed and approved for the occupational specialty.

Definition of a Specialty Occupation The Immigration and Nationality Act (INA) Section 214(i) defines "specialty occupation" as an occupation that requires: theoretical and practical application of a body of highly specialized knowledge, attainment of a bachelor's or higher degree in the specific specialty or experience in the specialty equivalent to the completion of such degree and recognition of expertise in the specialty through progressively responsible positions relating to the specialty, and full state licensure to practice in the occupation, if such licensure is required to practice in the occupation.

Examples of H-1B Specialty Occupations

  • Computer Programmers
  • System Analysts
  • Accountants
  • Teachers
  • Engineers
  • Scientists
  • Data Base Administrators

Obtaining an H-1B Visa
The H-1B Visa applicant will have to have a job offer from an employer willing to petition (apply) for the H-1B Visa applicant. The H-1B employer will have to get the prevailing wage for the specialty occupation of the H-1B Visa applicant from the appropriate workforce state agency. The H-1B employer than obtains a Labor Condition Application (LCA) approval from the Department of Labor and the required posting of the specialty occupation. With the LCA approval, the H-1B employer can file the petition with supporting documents to the United States Citizenship and Immigration Services (USCIS) with the required filing fee.

There is a USCIS premium processing fee to expedite the processing of the petition. If the H-1B Visa applicant is outside of the United States, consular processing at the United States consulate or embassy responsible for the applicant's home country can begin. If the H-1B Visa applicant is in the United States in a valid nonimmigrant status, it is possible to change status from a previous non-immigrant visa, such as a F-1 Student Visa, to an H-1B Visa.

Labor Condition Application (LCA)
The LCA is one of the most important documents that an H-1B employer needs in order to sponsor H-1B Visa workers. The LCA is limited to one occupation with a specific job description of the worker's duties. The LCA is filed together with required employer attestations either electronically or via mail with the Department of Labor. The LCA, Form-9035, contains all the information about the proposed H-1B employment and may be filed for up to 999 workers in up to two of the employer's locations. Once the Department of Labor certifies the LCA, the H-1B employer is ready to file Form I-129 petition to the USCIS.

Quota Cap for H-1B Visas
There is a yearly quota cap of 65,000 H-1B Visas. If the H-1B worker has obtained a U.S. Master's Degree, there is a separate yearly quota cap of 20,000. There are certain type of employers who are exempt for yearly quota cap.

  • Examples of employers who are exempt from the yearly quota cap are:
  • Institutions of Higher Education as defined in the Higher Education Act of 1965
  • Nonprofit Organizations
  • Nonprofit Research Organizations

From H-1B Visa to Lawful Permanent Residency
The H-1B Visa category is a dual-intent visa. This means that an H-1B Visa holder can have two intentions when entering and while living in the United States. One is intending to be a non-immigrant H-1B Visa holder and the other is intending to eventually become an immigrant as a lawful permanent resident if an immigrant employment petition or family petition is filed and approved.

Time Permitted in an H-1B Visa
The total time permitted for an H-1B Visa worker is six years. The initial approval is for three years, however, the H-1B Visa can be extended for another three years. After the six years have been completed, the H-1B Visa worker must leave the United States and remain outside of the country for one year before applying for another H-1B Visa. However, if the H-1B Visa worker has a Labor Certification filed 365 days prior to the sixth year expiration or an I-140 Immigrant Petition approved, then the H-1B Visa worker is eligible for extensions beyond the six-year period and does not have to leave the United States.

Note: Obtaining an H-1B Visa entails working with the qualifying employer and the candidate employee. It is a complicated process having to deal with several government agencies. It is advisable that the H-1B Visa employer and candidate employee contact an Immigration Attorney to assist them to ensure a higher probability of success in the H-1B Visa process.

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Mec. Darius A. Marzec prowadzi sprawy sądowe i jest uprawniony w stanach Nowy Jork, New Jersey, Pennsylwania, Connecticut, Massachusetts, Illinois, Floryda, California, w Waszyngtonie i na Hawajach.