Overview
This category is for individuals seeking
to enter the United States for the purpose
of employment in a specialty occupation
or as a fashion model of distinguished merit
and ability. In order to qualify for this
category the alien must be entering the
United States temporarily to provide services
in a specialty occupation, which requires
completion of a specific course of education
(usually a bachelor’s degree or higher).
This category also includes Government-to-Government
research and development, and/or projects
administered by the Department of Defense.
Entertainers, athletes and artists are excluded
from the H-1B category.
Applying for H-1B nonimmigrant status involves
a number of steps. First, a prevailing wage
(going rate for similar U.S. workers in
the occupation) must be obtained for the
type of employment the beneficiary will
be doing. In some circumstances, it is also
necessary to obtain a prevailing wage for
additional locations where the alien will
be employed. Prevailing wages may be obtained
through a request to the State Department
of Labor. A Labor Condition Application
must then be filed with and certified by
the Department of Labor. Upon receipt of
the certified labor Condition Application,
the application for H-1B nonimmigrant status
will be filed with the United States immigration
and Naturalization Service on behalf of
the alien. If the alien is outside of the
United States he will apply for an H-1B
visa at U.S. consulate abroad. If the alien
is in the United States in valid nonimmigrant
status, he may request a change of status
to H-1B. Canadians need not attend at a
Consulate/Embassy and may apply directly
at the Port of Entry.
H-1B Requirements
One of the following must be met in order
to qualify as a specialty occupation:
• Equivalent of a U.S. bachelor degree
or higher (or, in some cases, equivalent
professional experience) is the minimum
requirement for entry into the position;
• The degree requirement is common
to the industry in parallel positions among
similar organizations or, in the alternative,
an employer may show that its particular
position is so complex or unique that it
can be performed only by an individual with
a degree; or
• The employer normally requires
a degree or its equivalent for the position;
or
• The nature of the specific duties
are so specialized and complex that knowledge
required to perform the duties is usually
associated with the attainment of a baccalaureate
or higher degree.
The alien must provide evidence that he
meets the qualifications of the position,
as follows:
• State license for the State in
which the alien intends to practice (if
required by State); and
• Bachelor degree or higher in the
intended field; or
• Evidence of education and experience
that is equivalent to the U.S. bachelor’s
degree.
Maximum Stay in the US
An initial H-1B may be granted for up to
three (3) years. Extensions in increments
of no more than two (2) years may be applied
for up to a maximum of six (6) years. In
exceptional circumstances, an additional
year may be available. After the six years,
the alien must live outside of the United
States for at least one (1) year prior to
applying under this category again.
Spouses and Dependent Children
The spouse and dependant children (unmarried
under the age of 21 years) will receive
an H-4 for the same time period. The spouse
and dependent children may not be employed
under the H-4 classification, however, they
may study and participate in other activities
allowed by visitors.
Dual Intent
Dual intent is permitted with the H-1B visa.
This means that the alien can be in the
United States on an H-1B visa and can also
apply for permanent residence in the United
States. |
