H-1B - SPECIALTY OCCUPATION
The specialty occupation 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 specialty occupation workers to enter the United States and accept employment in a professional capacity for a temporary period.
The specialty occupation worker 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 & Children
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.
Dependents Permitted To Attend School or College
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 specialty occupation worker to work for two employers during the same time period.
Special H-1A visa classifications exist for registered nurses.
The H1B applicant must be coming to the United States to perform services in a "specialty occupation." That term is defined by law as,"an occupation that requires--(A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States."
The applicant must possess the appropriate academic degree or equivalent by experience through progressively responsible positions.
If the applicant possesses a foreign degree, a credential evaluation may be required by the Immigration Service.
There must be an employer in the United States offering the employment in a specialty occupation. The offer of employment may be for full or part time employment.
Where licensure is required to practice a specialty occupation, the applicant must hold appropriate licensure under state law.
The employer must complete the Labor Condition Application with the United States Department of Labor. Within that attestation the following assurances must be made by the employer:
- The employer will pay the H1B employee the higher of (a) the actual wage rate that it pays to all other individuals with similar experience and qualifications and (b) the prevailing wage level for the occupation in the metropolitan statistical area of employment.
- The employment of the H1B worker will not adversely affect the working conditions of workers similarly employed in the area of intended employment.
- There is no strike or lockout in the H1B worker's occupation at the workplace.
- The employer will provide notice of the filing of the labor condition application to the collective bargaining representative of its employees in the H1B occupation or, lacking such a representative, will conspicuously post such a notice at the work site on or within 30 days of filing the Labor Condition Application.
- The employer will maintain for public examination, a copy of the Labor Condition Application filed, documentation of the salary paid to the H1B employee, an explanation of how the actual wage was determined, and a copy of the documentation of the basis used for the prevailing wage.
- 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 employer's petition has been approved by the Immigration & Naturalization Service, 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 employment by the Immigration & Naturalization Service.
The H-1B Specialty Occupation visa is subject to an annual numerical quota of visas. The quota applies to new H-1B applications, and does not apply to H-1B visa holders who are seeking extension or change of employer.
Spouse & Children Not Allowed to Work
The spouse and children of the H-1B visa holder are not permitted to work.
Nonconvertible To Permanent Residence
The H-1B visa is not convertible to lawful permanent residence status. Possessing an H1B visa does not preclude obtaining lawful permanent residence by other means, such as alien labor certification, family petition, or political