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THE H-1B (SPECIALITY OCCUPATION) PETITION FOR VISA IN
THE UNITED STATES
INTRODUCTION:
Up to 2000 the
typical way trained professionals obtained visas to work within the United States was the use of H-1B visas which were readily
granted to fill the thousands of positions within the United States’ vibrant high technology industry.
Pressed by the powerful heads of these industries, the INS freely granted
increasing numbers of such Petitions and only the collapse of the
“tech bubble” in 2001 stopped the expanding use of this
method of working in the United States.
There is a myth
prevalent that the days of the H-1B are now over. That is simply untrue,
though the number of such visas granted has diminished since 2000.
Nevertheless, in fiscal year 2004 (which started on October 1,
2003 and ends September
30, 2004) sixty five
thousand H-1B visas were granted, averaging 14,500 a month in October,
November and December. While it is likely that the Petitions will
“top out” quite soon, the fact remains that many are granted
annually and this is a viable way for many to seek entry into the United States work force. The day of the H-1B is not
over…only more limited.
REQUIREMENTS:
Summary
> H-1B status is
for workers in specialty occupations, such as:
* Architecture
* Computer Science
* Engineering
* Mathematics
* Physical sciences
* Social sciences
* Medicine and
health
* Education
* Business
specialties
* Accounting
* Law
* Theology
> H-1B status is
available to workers in occupations requiring highly specialized
knowledge, normally acquired through a four-year college degree (or its
equivalent).
Requirements
Although myriad
“specialty occupations” exist, there are specific
requirements that the petitioner (who is the employer) and the
beneficiary must meet in order to successfully obtain an H-1B visa:
> The foreign
worker must be coming to the U.S. to perform services in a “specialty
occupation” which requires a college education or its equivalent in
experience. Three years of
“progressively more responsible experience” equals one year
of college.
> The position
must meet one of the following criteria (although it is best to meet all
four):
1. A
bachelor’s degree or higher degree (or equivalent) is the minimum
requirement for entry into the position.
2. The degree
requirement is common to the industry.
3. The employer
normally requires a degree or its equivalent for the position.
4. The specific
duties are so specialized and complex that knowledge required to perform
the duties is usually associated with a bachelor’s degree.
> The foreign
worker must have the correct background for the job offered. Although the academic and professional
credentials may be strong, if they do not match the job, the individual
may not be eligible for H-1B status in that specific specialty
occupation.
> The petitioner
(employer) must file a Labor Condition Application (LCA) with the U.S.
Department of Labor (DOL) which certifies that the appropriate wage for
the job offered will be paid, proper notice has been given, and wages of U.S. workers will not be adversely affected. The petitioner must ascertain both
prevailing wage in the marketplace at the geographic location and actual
wage being paid in the petitioner’s company. The petitioner must pay higher of
actual wage or 95% of prevailing wage in the marketplace.
> In addition to
obtaining an approved LCA from the DOL, the petitioner must also post two
copies of this form at the foreign worker’s place of
employment. This form includes
information about the foreign worker’s salary, but need not mention
the individual’s name. The
petitioner must provide a copy of the LCA to the foreign worker.
> The employing
company must also maintain a “Public Access File” for each
H-1B foreign worker. The filed LCA
and supporting documentation must be available for public examination
within one working day after the date when the LCA is filed with the
Department of Labor. The file must
be retained for at least one year after employment is terminated.
Validity of H-1B
Status
> H-1B visa
beneficiaries may initially stay in the U.S. for up to three years, and may opt to extend
their status for another three years.
The maximum consecutive period of time that an H-1B beneficiary
may stay is six years.
The reader is
advised to also read our general article on Coming to America: Non Immigrant and Immigrant Visa Applications
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