H-1B, SPECIALTY OCCUPATIONS
The H-1B is a nonimmigrant classification used by an applicant who will be employed temporarily in a specialty occupation. Requirements include a job offer in a qualifying occupation, a bachelor’s degree or equivalent at a minimum, and an offered salary that meets prevailing wage requirements. The H-1B is a popular tool for temporary employment of foreign nationals.
https://slides.tips/h1b-visa-entrepreneurs-h-1b-self-sponsor-new-york-immigration-attorney.html
https://techonomy.com/2017/02/h1b-visas-why-theyre-broken-and-what-we-can-do/
https://cei.org/sites/default/files/David%20Bier%20-%20America%20Needs%20a%20True%20Entrepreneurship%20Visa.pdf
http://o1visalawfirm.com/the-application-process-for-the-o-1-visas/
The H-1B is a nonimmigrant classification used by an applicant who will be employed temporarily in a specialty occupation. Requirements include a job offer in a qualifying occupation, a bachelor’s degree or equivalent at a minimum, and an offered salary that meets prevailing wage requirements. The H-1B is a popular tool for temporary employment of foreign nationals.
Please find following Frequently Asked Questions, with corresponding responses:
WHAT IS A SPECIALTY OCCUPATION?
Under INA section 101(a)(15)(H)(i)(b), a specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its "equivalent." Some examples of "specialty occupations" include computer professions, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.
An H-1B visa petition may be approved with a combination of college or university course work plus three years of work experience and training for each year of university education missing. Where the position requires a license, the foreign national must possess the appropriate license prior to receiving approval of the H-1B visa petition.
HOW DOES ONE APPLY FOR AN H-1B?
The H-1B requires a sponsoring U.S. employer. Under INA section 101(a)(15)(H)(i)(b), the sponsoring employer must file a labor condition application (LCA) with the Department of Labor, attesting to several things, including: (1) that the employer is paying at least the prevailing wage or actual wage, whichever is greater; (2) that the working conditions of similarly employed workers will not be adversely affected; (3) that there is not a strike or lockout; and (4) that the employer has notified its existing employees of the H-1B filing. The USCIS will not approve an H-1B petition without a completed, signed, and certified LCA.
The Department of Labor is involved in the process because the federal government seeks to ensure that foreign workers are not being underpaid for their services. While this protects foreign workers from being abused, the main purpose of this process is to protect the jobs of American workers and to ensure that wages are not artificially depressed.
Once the LCA is certified, the sponsoring employer files Form I-129, along with the H supplement, certified LCA, and any additional supporting documentation with the U.S. Citizenship and Immigration Services (USCIS) center having jurisdiction over the city of intended employment.
HOW LONG CAN AN APPLICANT BE IN H-1B STATUS?
An applicant may be in H-1B status for a maximum period of six years. However, an H-1B will not be granted for more than three years at a time. Following the maximum six-year period, an applicant must remain outside the U.S. for one year before being eligible to re-enter the U.S. on another H-1B. The maximum period allowable in H-1B status is based on time actually spent in the U.S. on H-1B status; it is not based on the validity of the visa. It is important to note that periods spent in H-4 status also count toward the six-year limit.
UNDER WHAT CIRCUMSTANCES MAY AN APPLICANT WHO IS RUNNING OUT OF HIS OR HER SIX YEARS IN H-1B STATUS EXTEND THAT STATUS?
Under S. 2045 section 104(c), a beneficiary of an employment-based first, second or third preference petition who is eligible for permanent residence but for the per-country limits may obtain extension of the H-1B status until the adjustment of status or immigrant visa is approved.
In addition, section 106(a) of S. 2045 contains special provisions requiring the USCIS to grant H-1B extensions beyond the six-year maximum in cases of lengthy adjudications. Section 106 allows H-1B non-immigrants with pending I-140s or labor certification application to extend their status beyond the six year maximum if 365 days or more have passed since the original filing date of their labor certification application or their I-140 filing date. The extension will be granted in one-year increments until the adjustment of status or immigrant visa application is adjudicated.
Although there is no consensus of opinion, Section 106(j) of S. 2045 allows employment-based adjustment of status applicants (from any non-immigrant category) whose I-485s have been pending for 180 days or more to change employers without invalidating the underlying I-140 or labor certification as long as the new employment is in the same or a similar occupational classification as the job for which the petition was filed. Regulations regarding this have still not been issued; as such, one should proceed with caution when considering a change of employers at the I-485 stage.
WHO CAN AN H-1B HOLDER WORK FOR?
H-1B holders may only work for the petitioning U.S. employer and only in the activities and sites outlined in the H-1B petition. H-1B holders may be employed concurrently for more than one U.S. employer. If an H-1B worker has H-1B status with one employer and continues to work for that employer while commencing new employment for a second employer, the second employer must file, and ultimately obtain, approval of the H-1B petition from the USCIS. In short, an approved H-1B petition is not immediately transferable to a second employer or a second job for the same employer
MY H-1B VISA PETITION HAS BEEN FILED. MAY I BEGIN WORKING IMMEDIATELY?
As a general premise, work may not commence until the H-1B visa petition is approved. However, section 105 of S. 2045 allows aliens previously issued a visa or otherwise provided H-1B status to accept new employment upon the filing of a new petition by a new employer, subject to final approval of the petition. If the petition is denied, work authorization ceases. In order to be eligible, (1) the applicant must have been lawfully admitted to the U.S.; (2) the new petition must have been filed before the expiration of the period of stay authorized by the Attorney General; and (3) the individual must not have been employed without authorization in the U.S. before the filing of such petition.
CAN AN H-1B APPLICANT INTEND TO IMMIGRATE PERMANENTLY TO THE U.S.?
As a general premise, most nonimmigrant visa classifications require an applicant to maintain a foreign residence abroad and demonstrate that he/she is entering the U.S. temporarily. However, USCIS regulations permit an applicant on an H visa to have "dual intent." Under the doctrine of dual intent, which has been recognized in immigration law since the passage of the Immigration Act of 1990, an applicant on H-1B status is not barred from entering the U.S. with the hope of attaining permanent resident status at some future time. Accordingly, the filing of a labor certification or an employment-based preference petition will not cause denial of an H-1B petition that is filed with the USCIS or an application for an H-1B visa at a U.S. Consulate abroad.
Under INA section 101(a)(15)(H)(i)(b), a specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its "equivalent." Some examples of "specialty occupations" include computer professions, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.
An H-1B visa petition may be approved with a combination of college or university course work plus three years of work experience and training for each year of university education missing. Where the position requires a license, the foreign national must possess the appropriate license prior to receiving approval of the H-1B visa petition.
HOW DOES ONE APPLY FOR AN H-1B?
The H-1B requires a sponsoring U.S. employer. Under INA section 101(a)(15)(H)(i)(b), the sponsoring employer must file a labor condition application (LCA) with the Department of Labor, attesting to several things, including: (1) that the employer is paying at least the prevailing wage or actual wage, whichever is greater; (2) that the working conditions of similarly employed workers will not be adversely affected; (3) that there is not a strike or lockout; and (4) that the employer has notified its existing employees of the H-1B filing. The USCIS will not approve an H-1B petition without a completed, signed, and certified LCA.
The Department of Labor is involved in the process because the federal government seeks to ensure that foreign workers are not being underpaid for their services. While this protects foreign workers from being abused, the main purpose of this process is to protect the jobs of American workers and to ensure that wages are not artificially depressed.
Once the LCA is certified, the sponsoring employer files Form I-129, along with the H supplement, certified LCA, and any additional supporting documentation with the U.S. Citizenship and Immigration Services (USCIS) center having jurisdiction over the city of intended employment.
HOW LONG CAN AN APPLICANT BE IN H-1B STATUS?
An applicant may be in H-1B status for a maximum period of six years. However, an H-1B will not be granted for more than three years at a time. Following the maximum six-year period, an applicant must remain outside the U.S. for one year before being eligible to re-enter the U.S. on another H-1B. The maximum period allowable in H-1B status is based on time actually spent in the U.S. on H-1B status; it is not based on the validity of the visa. It is important to note that periods spent in H-4 status also count toward the six-year limit.
UNDER WHAT CIRCUMSTANCES MAY AN APPLICANT WHO IS RUNNING OUT OF HIS OR HER SIX YEARS IN H-1B STATUS EXTEND THAT STATUS?
Under S. 2045 section 104(c), a beneficiary of an employment-based first, second or third preference petition who is eligible for permanent residence but for the per-country limits may obtain extension of the H-1B status until the adjustment of status or immigrant visa is approved.
In addition, section 106(a) of S. 2045 contains special provisions requiring the USCIS to grant H-1B extensions beyond the six-year maximum in cases of lengthy adjudications. Section 106 allows H-1B non-immigrants with pending I-140s or labor certification application to extend their status beyond the six year maximum if 365 days or more have passed since the original filing date of their labor certification application or their I-140 filing date. The extension will be granted in one-year increments until the adjustment of status or immigrant visa application is adjudicated.
Although there is no consensus of opinion, Section 106(j) of S. 2045 allows employment-based adjustment of status applicants (from any non-immigrant category) whose I-485s have been pending for 180 days or more to change employers without invalidating the underlying I-140 or labor certification as long as the new employment is in the same or a similar occupational classification as the job for which the petition was filed. Regulations regarding this have still not been issued; as such, one should proceed with caution when considering a change of employers at the I-485 stage.
WHO CAN AN H-1B HOLDER WORK FOR?
H-1B holders may only work for the petitioning U.S. employer and only in the activities and sites outlined in the H-1B petition. H-1B holders may be employed concurrently for more than one U.S. employer. If an H-1B worker has H-1B status with one employer and continues to work for that employer while commencing new employment for a second employer, the second employer must file, and ultimately obtain, approval of the H-1B petition from the USCIS. In short, an approved H-1B petition is not immediately transferable to a second employer or a second job for the same employer
MY H-1B VISA PETITION HAS BEEN FILED. MAY I BEGIN WORKING IMMEDIATELY?
As a general premise, work may not commence until the H-1B visa petition is approved. However, section 105 of S. 2045 allows aliens previously issued a visa or otherwise provided H-1B status to accept new employment upon the filing of a new petition by a new employer, subject to final approval of the petition. If the petition is denied, work authorization ceases. In order to be eligible, (1) the applicant must have been lawfully admitted to the U.S.; (2) the new petition must have been filed before the expiration of the period of stay authorized by the Attorney General; and (3) the individual must not have been employed without authorization in the U.S. before the filing of such petition.
CAN AN H-1B APPLICANT INTEND TO IMMIGRATE PERMANENTLY TO THE U.S.?
As a general premise, most nonimmigrant visa classifications require an applicant to maintain a foreign residence abroad and demonstrate that he/she is entering the U.S. temporarily. However, USCIS regulations permit an applicant on an H visa to have "dual intent." Under the doctrine of dual intent, which has been recognized in immigration law since the passage of the Immigration Act of 1990, an applicant on H-1B status is not barred from entering the U.S. with the hope of attaining permanent resident status at some future time. Accordingly, the filing of a labor certification or an employment-based preference petition will not cause denial of an H-1B petition that is filed with the USCIS or an application for an H-1B visa at a U.S. Consulate abroad.
WHAT IS THE STATUS OF AN H-1B HOLDER’S SPOUSE AND MINOR CHILDREN?
A spouse or unmarried child of an H-1B holder is entitled to H-4 status and the same duration of stay as the principal H-1B. Qualifying family members include only the spouse and unmarried children under 21 years of age. The spouse and dependent minor children may not accept employment, but may attend school in the U.S. In order to work, family members must obtain permission from the USCIS through the approval of a change of status application to a nonimmigrant category permitting employment.
A spouse or unmarried child of an H-1B holder is entitled to H-4 status and the same duration of stay as the principal H-1B. Qualifying family members include only the spouse and unmarried children under 21 years of age. The spouse and dependent minor children may not accept employment, but may attend school in the U.S. In order to work, family members must obtain permission from the USCIS through the approval of a change of status application to a nonimmigrant category permitting employment.
NOTE: Keep in mind that the filing of an H-1B visa extension for the principal applicant does not automatically extend the status of applicant’s spouse and minor children.
WHAT IS AN H-1B VISA?
The H-1B visa is a stamp that is attached to an individual’s passport. An applicant obtains the initial visa stamp at a U.S. embassy or consulate abroad. The visa is the U.S. government’s authorization for an applicant to enter the U.S. It is important to understand that an H-1B Approval Notice and the visa are not one in the same. Often times, aliens believe that they have an H-1B visa because they have an approved H-1B petition, but that is not necessarily the case. An H-1B Approval Notice without a visa will not entitle an applicant to re-enter the United States.
The H-1B visa is a stamp that is attached to an individual’s passport. An applicant obtains the initial visa stamp at a U.S. embassy or consulate abroad. The visa is the U.S. government’s authorization for an applicant to enter the U.S. It is important to understand that an H-1B Approval Notice and the visa are not one in the same. Often times, aliens believe that they have an H-1B visa because they have an approved H-1B petition, but that is not necessarily the case. An H-1B Approval Notice without a visa will not entitle an applicant to re-enter the United States.
https://techonomy.com/2017/02/h1b-visas-why-theyre-broken-and-what-we-can-do/
https://cei.org/sites/default/files/David%20Bier%20-%20America%20Needs%20a%20True%20Entrepreneurship%20Visa.pdf
http://o1visalawfirm.com/the-application-process-for-the-o-1-visas/
H-1B, SPECIALTY OCCUPATIONS #l1visa https://t.co/Pz3S04TWJp— USA Law - USA Lawyer (@Immigrationinnj) 29 de marzo de 2018
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