Our firm has experience successfully filing H1B visa petitions for numerous types of employers and organizations. We understand the intricate and time-sensitive nature of H1B visa petitions and use our experience to obtain successful results for our clients. We handle initial petitions, extensions, transfers and H4 dependent visa petitions. H1B visas are available to foreign workers who come to the United States temporarily to perform services in a “specialty occupation”, or as a fashion model.
A “specialty occupation” is an occupation that requires a theoretical and practical application of a body of highly specialized knowledge, and 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 United States. This often means that the foreign worker has full state licensure to practice in the occupation, if such licensure is required to practice in the occupation, completion of the degree required for the position, or experience in the specialty equivalent to the completion of such degree and recognition of expertise in the specialty through progressively responsible positions relating to the specialty. If the foreign worker is a fashion model, the model must be of distinguished merit and ability.
The job must meet one of the following criteria to qualify as a specialty occupation:
- Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position.
- The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree.
- The employer normally requires a degree or its equivalent for the position.
- 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 or higher degree.
For you to qualify to accept a job offer in a specialty occupation you must meet one of the following criteria:
- Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university.
- Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation.
- Hold an unrestricted state license, registration, or certification which authorizes you 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 expertise in the specialty through progressively responsible positions directly related to the specialty.
Labor Condition Application (LCA)
Prospective specialty occupation and distinguished fashion model employers must obtain a certification of an LCA from the DOL. This application includes certain attestations, a violation of which can result in fines, bars on sponsoring nonimmigrant or immigrant petitions, and other sanctions to the employer. The application requires the employer to attest that it will comply with the following labor requirements:
- The employer will pay the beneficiary a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for your position in the geographic area in which you will be working.
- The employer will provide working conditions that will not adversely affect other similarly employed workers.
- At the time of the labor condition application there is no strike or lockout at the employer place of business.
- Notice of the filing of the labor condition application with the DOL has been given to the union bargaining representative or has been posted at the place of business.
H1B Visa Cap
The H1B visa has an annual numerical limit “cap” of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap. Additionally, H1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities or a nonprofit research organization, or a government research organization are not subject to this numerical cap.
Period of Stay
As an H1B nonimmigrant, you may be admitted for a period of up to three years. Your time period may be extended, but generally cannot go beyond a total of six years, though some exceptions do apply under the American Competitiveness in the Twenty-First Century Act (AC21).
Your employer will be liable for the reasonable costs of your return transportation if your employer terminates you before the end of your period of authorized stay. Your employer is not responsible for the costs of your return transportation if you voluntarily resign your position. You must contact the Service Center that approved your petition in writing if you believe that your employer has not complied with this requirement.
The time that it takes to process an H1B visa petition is generally around three months. Because processing times are determined by case load and often fluctuate throughout the year, it is important to check current processing times to get an accurate idea of how long it will take to process your H1B visa petition.
U.S. Citizenship and Immigration Services offers “premium processing” for those that need an expedited decision in their case. Premium processing guarantees a decision in your case within 15 calendar days with the payment of a premium fee.
One of the main advantages of the H1B visa is “immigrant intent.” This means that holders of an H1B visa may have the intent to remain permanently in the United States and have the option of filing for permanent residency, a green card. Although the maximum period of stay on an H1B visa is generally 6 years, if an H1B visa holder applies for permanent residency before the beginning of their sixth year in H-1B status, they can renew their H1B perpetually, or until they receive a decision on their permanent residency petition.
Family of H1B Visa Holders
Your spouse and unmarried children under 21 years of age may seek admission in the H4 nonimmigrant classification. Family members in the H4 nonimmigrant classification may not engage in employment in the United States.
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