INTRODUCTION

The H-1b visa is a very versatile work visa. With the H1-B, also called the H1B, H-1, or even H1 (we will use the terms interchangeably, we just want you to know they all mean the same thing), you can work part-time or full-time; a lot of people do not know that it allows for part-time work. It also allows you to apply for a Green Card (called PERM) There are a few basic features of this visa that make it popular. For example, if you want to work for a firm on a part-time basis, this visa allows you to do just that. If you want to apply for a Green Card without leaving the country, you can do that. In fact, if you apply over a year in advance of your last H1b year, they will extend the H1 visa year after year until you receive your Green Card [note it”s not about when you apply but a bit more complicated–call us if you need this fully explained]. This is a wonderful benefit of the H-1b visa and no other visa has any similar provision.

There is another visa for nurses called the H-1A, and we are not dealing with it here. On the topic of the medical professions, we are not dealing with the H1B for doctors either. They are both highly specialized and if you have questions about them, please call us at 1-877-233-4684.

If you are a student, you can enter as an F1 visa holder, work in OPT (Optional Practical Training) and then simultaneously apply for the H1B visa.

An H1b lasts for a maximum of 6 years with all extensions (unless you applied for PERM, in which case it can be extended beyond 6 years). If you intend to remain in the U.S. and file for a Green Card case, do so as soon as you can. If the Green Card case is held up for any reason, you may find your 6 years are almost over and you are left with no way of remaining. However, under certain circumstances you can go past the 6 year limit if you are filing for a Green Card through what is called PERM and apply just over a year in advance of the last year that you hold your visa.

H-1 VISAS: A BASIC LEGAL SUMMARY

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The H-1 is available for:

A. Those in a Specialty Occupation (the most popular)

B. Fashion Models of distinguished merit and ability

C. People working for the Department of Defense in certain projects.

In order to qualify, you must be coming here (i.e. The U.S.) for a temporary period of time. All non-immigrant visas (visas all have letters of the alphabet) have this requirement. The K visas, an exception, are a strange hybrid and follow different rules. Unlike and H-2B visa, that required the position and the job be temporary, the H-1b requires that the actual job be temporary even though the job is permanent (ie teacher). Although you have to intend to remain temporarily, you do not have to show the government that you are maintaining a home in a foreign country. Here, the ‘dual intent’ doctrine applies and it allows you to:

IF YOU OWN YOUR COMPANY

This is an interesting twist to the H-1B visa. If you own the company, it is possible under one of the precedent cases to petition yourself for an H-1B. However, obtaining the Green Card will be extremely difficult if not impossible if you own the firm (I am referring to a Green Card through what is known as Labor Certification).

BASIC REQUIREMENTS

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In order to qualify for this visa you must either have a 4-year degree or the equivalent. This is a little more complex thanit sounds. The easiest way for the USCIS (Immigration Dept. or United States Citizenship and Immigration Services) to deny the case is based on the definition of a “Specialty Occupation”. In plain English, most people must have a 4-year degree or equivalent. The equivalency has been challenged a lot in 2005 and now the standards are higher; any credential evaluation firm will not do, they like to see an authority (ie professor) document the equivalency and more.

4-YEAR DEGREE

You can have a degree from the United States or your own country. If, for example, you studied in England, then you would go to a Credential Evaluation Firm that would evaluate the value of your education as compared to American standards. The service can be performed in as little as 24-48 hours and for a couple of hundred dollars.

A specialty Occupation is defined in the CFRs (Code of Federal Regulations)[consider them like the owner”s manual to the law, or INA, Immigration and Nationality Act] as needing:

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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 U.S.

If you examine section 8 CFR (Code of Federal Regulations) written as 8 CFR 214.2(h)(4)(iii)(A), you will understand their thinking when you consider that the position must meet one of the following 4 indices in order to be a Specialty Occupation:

1. A bachelor’s degree or higher;

2. The degree requirement must be required in the industry in a similar position (this one is debated a lot);

3. The employer normally needs a degree for that type of position; OR

4. The position is so specialized or complex that the knowledge you require is usually associated with the completion of a degree.

A critical case in this area is Matter of Michael Hertz Assoc., 19 I&N Dec. 558 (Comm. 1988). In this case they discussed the various elements to analyze the job (I have summarized them in my own words here to simplify):

A. Have a look at the requirements of the position: what tasks will be performed? What is really required of the person?

B. Does the job need theoretical and applied knowledge that is almost always only found in a university?

C. Does the job require a specific type of education?

D. Is the pay and compensation of the type to indicate it is a higher level position?

The case also went on to state negative factors. For example, if you simply went to school and obtained a general education then you may not qualify. On the other end of the scale, if the employer wants you to have an education simply because he or she would like someone educated without reference to specific job-related issues, that will not suffice.

H1B Visa LawyerIf you don’t have a degree but have so much experience you don’t know what to do with it, you can trade in 3 years of experience for each year of professional training that you lack. For example, let’s say you went to university for 2 years and have six years of experience, you may have the equivalent of a 4-year degree. We are often asked whether you can satisfy all 4 years of education with 12 years of experience and you’ll be happy to know the answer is yes, and we have dealt with this many times.

I must inform you however that there are a number of sub-categories of this general ‘yes’ I provided, and I would first consult with a lawyer before making any plans. For example, just any experience is not sufficient; you must have the theoretical and practical use of the type of specialized knowledge that you would have at the professional level. Again, as I mentioned above, the standards for equivalency have been tightened.

TECHNICAL REQUIREMENTS

There are a number of technical requirements to this case. An LCA (Labor Condition Application) has to be prepared and a wage survey has to be conducted. The government has guidelines as to what you should be paid and each job title is dependent on the county in which you will be working. Do not forget to inform your lawyer of the county so your case can be processed quicker.

The LCA requires the employer to pay you at least what everyone else in a similar position is being paid. If your employer is a willful violator or highly dependent on H1Bs, he, she or it must follow a different set of requirements when the LCA is filed.

Wages are classified as wages in the sense they are labeled ‘earnings’ for income tax and FICA (Federal Insurance Contributions Act=Unemployment Insurance). The wage rate does not include fringe benefits. There can also be no strike or lockout in progress and this is attested to in the LCA.

A last important issue here is that your employer must have a Federal Tax Identification number (it is similar ot a Social Security number for a company) in order to file. If your employer is a small company or new, advise them to get one of these asap; they can sometimes be obtained over the phone.

CAP

There is a limit of 65,000 visas per fiscal year. The USCIS’s fiscal year runs from October first to October first. The good news is that this cap does not apply to renewals; it only applies to new cases. People who are with employer ‘A’ and now apply for an H-1 with employer ‘B’ (we just had such a case last week where a man’s H-1 ended the last day he was employed with employer ‘A’) . The others whose H1-b visa does not count against the quota include:

A. People who work at higher education institutions;H1B Visa Lawyer

B. People who work for non-profit research organizations;

C. Those who work at at government research organizations; and

D.Persons of foreign descent who had J-1 visas and then were issued waivers through what is known as the State 20 program.

Some of you may recall a cap of 195,000 per year, but that was just for the years 2001-2003.

The cap is not affected by spouses and children who apply for what are called derivative visas. A derivative visa is one that ‘gets’ or derives its status from the main visa. In the case of an H-1, the derivative visa is the H-4, and that is what the spouse and children are issued.

PERMANENT BUT TEMPORARY POSITION

The position that is waiting for you should be a permanent position that is temporarily available.

PORTABILITY

The H-1 offers a wonderful feature that not that long ago was unavailable. Let’s say you work for employer ‘A’ but then want to leave the employer for employer ‘B’. Whereas under the old system you had to wiat for appoval for the new employer’s position, today you don’t have to. It means that once you file a new legitimate case and the USCIS has received it, you can work for employer ‘B’. You must apply with employer ‘B’ before your H-1b term with employer ‘A’ has expired.

WHAT TYPE OF POSITION CAN IT BE?

H1B Visa LawyerThis is an area that has bothered many people. They worry that their position is not one that the government will allow as a Specialty Occupation. There are many positions that have been allowed and there are cases to back up many other positions. The list would require a web site all its own due to its sheer size. Our most common type of client is the computer related (software/hardware/consulting), Manager, Consultant or Science related. Many others will qualify, and they include:

Acupuncturist, Chiropractor, Dietician, Graphic Designer, Interior Designer, Journalist, and Medical Technologist.

Of course, the standards apply with cases such as the teacher, lawyer, accountant, engineer and so on, but those were some of the more interesting I have found. However, in some of these professions, you have to be licensed in the particular state or area and that has to be followed.

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