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H1B Visa |
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Who is Eligible?
The H1B nonimmigrant visa may be issued to individuals who seek temporary entry
in a specialty occupation as a professional. Some examples of "specialty
occupations" include accountant, computer analyst, engineer, financial analyst,
scientist, architect or lawyer. The petition can be approved with a combination
of college or university course work plus three years work experience for each
year of university education missing. Together this would be deemed equivalent
to a four-year bachelor's degree.
For the next fiscal year 2004, beginning October 2003, there will be a maximum
of 65,000 H1B visas issued.
How To Apply
A Labor Condition Application (LCA) is first filed with the U.S. Department of
Labor (DOL). Then a Form I-129, Petition for Nonimmigrant Worker, with H
Supplement, and supporting documentation including the approved LCA is filed
with the Immigration and Naturalization Service (INS) Regional Service Center
having jurisdiction over the city of intended employment. A fee is required and
the petition must be filed by a U.S. employer. Once the INS approves the H1B
petition, it will forward the approval to a U.S. Consulate.
Documentation Requirements
For those individuals seeking to perform temporary services in a specialty
occupation, the petition must be filed with the following documentation:
(a) An approved LCA from the DOL
(b) Documentation that the job qualifies as a specialty occupation. A "specialty
occupation" is defined as one that requires the theoretical and practical
application of a body of highly specialized knowledge and the attainment of a
baccalaureate degree or higher as a minimum requirement for entry into the
occupation in the United States. The employer may meet this requirement by
showing that the nature of the specific duties are so complex or unique that
they can be performed only by an individual with the required degree, or that
the employer normally requires a degree or its equivalent for the position.
(c) A copy of the alien's U.S. college degree (bachelor's, master's or Ph.D.)
and/or foreign degree with evidence that it is equivalent which must be
evaluated and certified as a education equivalency to a U.S. baccalaureate
degree or higher. Evidence of education, specialized training, or experience
that is equivalent to a U.S. baccalaureate degree may also be submitted to
fulfill this requirement. To determine equivalency to a baccalaureate degree in
the specialty, three years of specialized training and/or work experience must
be demonstrated for each year of college level education that the alien lacks.
To show equivalency to a master's degree, the alien must have a baccalaureate
degree and at least five years of progressively responsible experience in the
specialty.
(d) A copy of any required license to practice the occupation in the state of
intended employment
(e) A copy of any written contract between the employer and the alien or a
summary of the terms under which the alien will be employed if there is no
written agreement.
In the event that the employer terminates the employment of the alien prior to
expiration of the H1B visa, the employer is responsible for providing return
transportation of the alien to his or her last place of foreign residence.
Duration of Visa
An H1B is approved by INS for an initial period of up to three years with a
total of six years.
Section 106 contains special provisions requiring the INS to grant extensions,
in one-year increments, past the six-year maximum, in cases of lengthy
adjudications. This section only applies to (1) H1B workers, (2) who are the
beneficiaries of EB visa petitions or who have submitted applications for
adjustment of status, and only if (3) 365 days or more have elapsed since (a)
the filing of an application for a labor certification on their behalf or (b)
the filing of an EB visa petition on their behalf.
Status of Spouse and Minor Children
A spouse or unmarried child of an H1B visa holder is entitled to an H-4 visa and
the same length of stay as the principal. The spouse and dependent minor
children cannot accept employment, but can attend school in the United States.
Servants of an H1B visa holder can receive a B-1 visa. |
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