Chapter 16 Getting a Temporary Specialty Worker (h-1 B) Visa

• Library: U.S. Immigration Made Easy (Nolo) (2023 Ed.)

CHAPTER 16 Getting a Temporary Specialty Worker (H-1 B) Visa

A. Do You Qualify for an H-1B Visa or Status?

1. Job Criteria
2. Job Offer From a U.S. Employer for Work Performed Inside the U.S
3. Specialty Occupation
4. Correct Background
5. Approved Attestation
6. Bringing Your Spouse and Children

B. Quick View of the H-1B Visa Application Process

C. Step One: Your Employer Files an LCA

D. Step Two: Your Employer Files a Petition

1. Simultaneous Change of Status If You're Already in the U.S
2. Assembling the Petition
3. The Registration Selection Lottery for "Cap-Subject" H-1Bs
4. Mailing the Petition
5. Awaiting a Decision on the Petition

E. Step Three: Applicants Outside the U.S. Apply for Visa

F. Step Four: H-1B Visa Holders Enter the U.S

G. Extending Your U.S. Stay

H. Your Rights as an H-1B Worker

H-1B temporary visas are made available to workers in occupations requiring highly specialized knowledge and to distinguished fashion models. (See I.N.A. § 101(a)(15)(H), 8 U.S.C. § 1101(a) (15)(H).) This visa is commonly used by workers in computer and other high-tech industries, but it's also available to people in other specialized fields, from accountants to attorneys to librarians to dietitians and other scientific or medical workers.

There's no limit, or "cap," on the number of H-1B visa petitions that can be approved for persons who will work for an institution of higher education (or a nonprofit affiliated with one), a nonprofit research organization, or a government research organization. Nor is there any limit on the number of H-1B petitions that can be approved for people who have already been counted against any year's cap on the number of visas, such as those extending previous H-1B visas.

Other applicants compete for one of only 85,000 H-1B visas that become newly available each fiscal year. (Fiscal years start October 1.)

Once that limit is reached in a given year—and it almost always is—no more H-1B visas can be approved until the start of the next fiscal year. Also, not all of the 85,000 total are freely available. Within that number, 20,000 are reserved for people with a minimum Master's-level degree from a U.S. academic institution. And not all of the remaining 65,000 visas are available to everyone—a certain number are earmarked for Chile and Singapore, which have both signed trade agreements with the U.S. allocating H-1Bs to citizens of those countries.

Key Features of the H-1B Visa

Here are some of the advantages and disadvantages of the H-1B visa:

• You can work legally in the U.S. for your H-1B sponsor, up to a maximum of six years (plus any extensions, as described in this chapter).
• Visas are available for your accompanying spouse and minor children. Your spouse might be able to apply for work authorization, but your minor children's H-4 status does not allow them to work.
• You may travel in and out of the U.S. or remain here continuously until your H-1B status expires.
• If your employer dismisses you before your authorized stay expires, the employer must pay for the trip back to your home country. This is true even if the cause of the firing was your own fault. This liability does not apply if you quit the job—only if you are fired.

SEE AN EXPERT

Do you need a lawyer? You can't ordinarily apply for an H-1B without having an employer first—and it's in your employer's interest to hire a lawyer to help. (In the limited entrepreneurial situations where you wouldn't necessarily need an employer, you'd have even more more reason to hire a lawyer.) Because more people try to get H-1B visas every year than there are visas available, a lawyer can help make sure that your application gets done right the first time, and gets filed before the visas run out.

A. Do You Qualify for an H-1B Visa or Status?

To qualify for an H-1B visa, you must first have a job offer from a U.S. employer for duties to be performed in the United States. In addition, you must:

• be coming to (or remaining in) the U.S. to perform services in a specialty occupation with a college degree or its equivalent in work experience, or to be a distinguished fashion model
• have a job offer from a U.S. employer for work to be performed in the U.S., and have been offered at least the prevailing wage that is paid in the same geographic area for that type of job (or the actual wage paid to similar workers at that employer—whichever is the higher of the two wages)
• have the correct background to qualify for the job you have been offered, and
• your employer must have filed and received approval of a Labor Condition Application (LCA) from the Department of Labor (DOL).

Your job itself must also meet certain criteria, including at least one of the following:

• A bachelor's degree or higher degree (or the equivalent) in a specific field is the minimum requirement for entry into the position.
• The degree requirement is common to the industry in parallel positions among similar organizations, or the duties of the position are so complex that it can be performed only by a person with a degree.
• The employer normally requires a specific degree or its equivalent for the position.
• The nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with a specific bachelor's or higher degree.

To qualify for an H-1B visa, unless you are a fashion model, you need at least a bachelor's degree or substantial on-the-job experience that is the equivalent of a bachelor's degree. If you're qualifying through a bachelor's degree, it's preferable if it's not in a liberal arts or general business subject area, which USCIS tends to view as insufficiently specialized.

If you don't have a bachelor's degree but will be attempting to qualify through work experience, USCIS uses an equivalency formula, whereby three years of specialized training and/or work experience count for every year of college that you would have attended. Therefore, if you have not attended any universities, you must show 12 years of professional experience.

You must be intending to perform services in a so-called specialty occupation. If a license to practice your particular occupation is required by the U.S. state in which you will be working, then, in addition to your educational credentials, you must also have the appropriate license.

Fashion models need not meet the specialty occupation requirements. Instead, they must show that they are nationally or internationally recognized for their achievements, and will be employed in a position requiring someone of distinguished merit and ability. They must be renowned, leading, or well known.

RESOURCE

For more information on H-1B visas for fashion models, see the USCIS regulations at 8 C.F.R. Section 214.2(h)(4)(vii). Because this is such a specialized area, this chapter does not provide details on applying as a fashion model, but the regulations do a good job of spelling out the documentary and other requirements.

B-1 in Lieu of H-1B

The State Department recognizes that some people who qualify for H-1B visas could also be classified as B-1 business visitors, based on their intended activities in the United States. If you're eligible for an H-1B but are having trouble getting H-1B petition approval, or simply don't want to go through the time and expense, the "B-1 in lieu of H-1B" visa is worth considering. (Not all consulates are receptive to this concept, however.) The main consideration is that you will not receive any salary or other payment from a U.S. source other than an expense allowance or other reimbursement for incidental expenses. If you are granted a B-1 in lieu of H-1B, the consulate is approving business activities that push the boundaries of what would otherwise be permissible on a B visa. Your visa will be a B-1 (or B-1/B-2) with its short period of authorized stay (six months to a year). It's possible that no notation will be made on the visa saying that it is in lieu of an H-1B.

To get an H-1B visa, not only do your qualifications have to meet the standards mentioned above, but you need to have the correct type of background for the job you are offered. If your academic and professional credentials are strong, but they do not match the job, then you are not eligible for an H-1B visa.

H-1B visas are only rarely given to prominent businesspeople without college degrees, even though these people might have substantial on-the-job experience. (O-1 visas might be available to this group. See Chapter 24.) H-1B visas are likewise not given to athletes and entertainers, who should consider instead O or P visas (discussed in Chapter 24). Professional nurses are rarely eligible for H-1B visas, because most nursing jobs require a two-year degree rather than a four-year bachelor's degree.

TIP

Unlike many other nonimmigrant visas, you don't have to prove that you plan to return home at the end of your U.S. stay. In fact, you can (if you are separately eligible) have family members or employers submit applications for you to get a permanent green card at the same time that you're pursuing your H-1B visa—which would be the kiss of death for most other temporary visa applications. It's a different story, however, if you aren't eligible for a green card now but openly admit that you have no intention of leaving the U.S. after your visa expires—then your visa will be denied.

1. Job Criteria

Specialty occupations include, but are not limited to, accountants, architects, engineers, artists, dietitians, chiropractors, librarians, software developers, physical therapists, chemists, pharmacists, medical technologists, hotel managers (large hotels), and upper-level business managers.

Some occupations requiring licenses do not usually fall into the H-1B category because college degrees are not normally needed. Such occupations include many types of medical technicians, real estate agents, plumbers, and electricians. Unless at least a four-year bachelor's degree...