H1B VISA
If you have at least a baccalaureate/bachelor’s degree and
your profession requires highly specialized skills, this visa may be the right
one for you!
An H-1B visa is available to
individual professionals who are looking to work in the U.S. for a particular
employer. H-1B visa applicants must first register to apply for their visa. The
registrations are selected through two lotteries occurring annually. For the
fiscal year 2022, 87,500 visas were selected in the first lottery, while an
additional 27,717 registrations were selected by November 3, 2021. In total, up
to 115,217 H-1B visas will be issued.
The most important requirement for
obtaining an H-1B visa is to ensure that the job qualifies as a “specialty
occupation.” Specialty occupations are those that require the theoretical and
practical application of a body of highly specialized knowledge, calling for
completion of a specific course of higher education. Some examples of specialty
occupations are computer professionals, architects, medical doctors (who have
passed their USMLE exams), civil engineers, lawyers, researchers, and marketing
professionals. These occupations usually require the minimum attainment of a
baccalaureate/bachelor’s degree from the United States or its foreign
equivalent.
HOW
DOES A JOB QUALIFY AS A “SPECIALTY OCCUPATION?”
To qualify as a specialty
occupation, the position must meet at least one of the following criteria:
−
The minimum entry requirement for the position requires a
bachelor’s degree (or higher degree), or its U.S. equivalent. In other words,
the foreign national’s degree should be equivalent to at least a bachelor’s
degree from the U.S.
−
It is common for that particular job industry to have a
minimum degree requirement, or the job is so complex or unique that it can only
be done by someone with at least a bachelor’s degree;
−
Requiring
a degree or its equivalent is a common demand of the particular employer;
−
The nature of the specific duties is so specialized and
complex that the knowledge required to perform the duties is usually associated
with the attainment of a bachelor’s degree (or a higher degree).
WHAT
HAPPENS IF A PERSON DOES NOT HAVE A BACHELOR’S DEGREE?
Even if a person does not have a
bachelor’s degree from an accredited institution, he or she can still qualify
for an H-1B visa. Under the Immigration and Nationality Act, three years of
work experience in the field is equivalent to one year of education. For
example, if a person did not complete their bachelor’s degree in their home
country, but has been working as an architect, then three years of experience
as an engineer can be used to satisfy one year of this individual’s education.
Therefore, an applicant without a bachelor’s degree can still qualify for an
H-1B visa if they have three years of work experience.
HOW
DOES SOMEONE KNOW IF THEY POSSESS THE PROPER EDUCATIONAL EQUIVALENT OF A
BACHELOR’S DEGREE?
For a person to know whether he or
she has the equivalent of a bachelor’s degree from the U.S., the applicant must
obtain a credential evaluation, available from an educational evaluation
company (one that is established in the U.S.).
HOW
CAN SOMEONE QUALIFY TO ACCEPT A JOB OFFER IN AN H-1B VISA SPECIALTY OCCUPATION
IN THE U.S.?
For an applicant to qualify to
accept a job offer in an H-1B visa position, they must meet one of the
following criteria:
−
Completed a U.S. bachelor’s degree (or higher degree)
required by the specific specialty occupation from an accredited college or
university;
−
Completed a foreign degree equivalent to a U.S. bachelor’s
degree (or higher degree) in the specialty occupation;
−
Hold an unrestricted state license, registration, or
certification that authorizes the person to fully practice the specialty
occupation and be engaged in that specialty in the state of intended
employment;
−
Have education, training, or progressively responsible
experience in the specialty that is equivalent to the completion of such a
degree and have recognition of his or her expertise in the specialty, through
progressively responsible positions directly related to the specialty.
WHAT
IS THE PRIMARY PROCESS FOR OBTAINING AN H-1B VISA?
In general, the process for
obtaining an H-1B visa is as follows:
1)
The
first step is that the U.S. employer submits a labor condition application
(LCA) to the
U.S. Department of Labor for
certification. The application requires that the company promise he or she will
comply with various labor requirements, such as providing the employee with a
fair wage and acceptable working conditions;
2) After receiving certification of the
labor condition application, the employer must then file a “Petition for a
Nonimmigrant Worker” (Form I-129) with the appropriate United States
Citizenship and Immigration Services (USCIS) center;
3) Once the Form I-129 is approved, the
prospective H-1B visa applicant, who is located outside of the U.S., may apply
for the H-1B visa with the U.S. Embassy or Consulate abroad. At the U.S. port
of entry, the prospective H-1B visa applicant must then apply to the U.S.
Customs and Border Patrol (CBP) for admission into the U.S.
HOW
LONG CAN I STAY IN THE U.S. AS AN H-1B VISA HOLDER?
An H-1B visa is generally granted
for three years. This time period may be extended, but generally cannot exceed
a total of six years. If your employer terminates you before the end of your
period of authorized stay, your employer will be responsible for the reasonable
costs of your return to your home country. However, if you voluntarily resign
from the employment before the end of your period of authorized stay, you will be
responsible for the costs of your return transportation.
CAN
AN H-1B VISA HOLDER HAVE THE INTENTION TO STAY IN THE U.S.
PERMANENTLY?
Yes. An H-1B visa holder can be the
beneficiary of an immigrant visa petition, apply for adjustment of status, or
take other steps toward obtaining lawful permanent residence (that is, become a
green card holder), without affecting their current H-1B status in the U.S.
CAN
I TRAVEL ON AN H-1B VISA, WHILE AWAITING PERMANENT RESIDENCE?
Yes. During the time that the
application for LPR status is pending, an H-1B visa holder may travel on his or
her H-1B visa. The H-1B visa holder does not need to obtain an advance parole
document or request other advance permission from U.S.C.I.S. to return to the
U.S.
CAN MY SPOUSE AND/OR CHILDREN ACCOMPANY ME TO THE U.S. ON AN
H-1B
VISA?
Yes. Spouses and unmarried children
under the age of twenty-one (21) of H-1B visa holders may apply for H-4
dependent visas, to accompany the primary H-1B visa holder to the United
States. The H-1B visa holder must be able to show that he or she will be able
to support his or her family in the U.S. Spouses and children of H-1B visa
holders are not allowed to work in the U.S.
Therefore, if you are an employer
looking to hire a foreign employee in a specialty occupation, or are a foreign
worker working in a specialty occupation and are seeking to come to the United
States, an H-1B visa may allow you to do so. The H-1B visa requires the minimum
attainment of a bachelor’s degree from the United States or its foreign
equivalent. United States employers must also first obtain a certified labor
condition application from the U.S. Department of Labor (DOL). The H-1B visa is
generally granted for three years and allows the applicant’s spouse and
children to accompany them to the United States.
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