H-1B (Specialty Occupation Visa)
The H-1B visa is perhaps the most popular visa for the temporary admission of foreign professionals, fashion models, and contractors seeking to work, on a full-time or part-time basis, in the United States. What makes the H-1B more practical than other non-immigrant visas is that a foreign national may maintain a dual intent to both work in the U.S. on a temporary basis and remain in the U.S. permanently. The H-1B is often used by professionals and skilled workers as the primary step to acquiring permanent residence in the U.S.
A three-step analysis is required to determine eligibility for an H-1B visa. First, it must be determined whether the position offered by a qualified U.S. employer is for a professional or specialist job. Second, it must be proven that the foreign national is a professional or specialist qualified for the position based on his or her education and/or work experience. Third, the wages and working conditions offered the foreign national must satisfy the Department of Labor (DOL) labor condition application (LCA) criteria.
A self-employed foreign national cannot obtain an H-1B visa. A corporation owner, however, may have the firm file an H-1B petition for his or her employment even if the foreign national is the enterprise’s sole proprietor. If the foreign national was not educated in the U.S., he must have his diplomas and transcripts analyzed by an education evaluation company in order to provide USCIS with an educational equivalency report. Foreign nationals who do not have a Bachelor’s degree, are able to substitute three years of relevant professional experience for each year that they lack toward a Bachelor’s degree. In other words, a person may qualify for an H-1B visa without ever attending or graduating from a higher education institution such as college or university.
The H-1B visa is valid for up to three years and can be renewed for an extra three years. An individual who spends more than six months per year abroad is exempt from the six-year limit. After exhausting available time, the foreign national may go abroad for a period of one year and then return with a new H-1B petition and be eligible for up to another six years of H-1B time. In the alternative, an H-1B visa holder may seek additional yearly extensions if an application for labor certification has been pending for more than one year and an I-140 immigrant petition has been filed.
If the foreign national is lawfully present in the United States, he or she may be able to apply for a change of status to an H-1B without leaving the U.S. or appearing for a change of status interview. If the foreign national is outside the U.S., the application is filed a USCIS Service Center and, when approved, is forwarded to the U.S. Consulate of the country where the beneficiary resides for further consideration.
The spouse and unmarried children under 21 years of age may accompany the primary H-1B beneficiary to the U.S. Family members may enter the U.S. with a different status such as a B-1/2 or an F-1.
The attorneys at the Law Offices of Yuri Tsyganov, PL have assisted numerous foreign professionals and domestic companies with the H-1B application process. We may be able to help you or your company come up with a cost and time effective approach to all of your H-1B petition needs. Call us today for a free consultation.