WELCOME TO THE WORLD OF THE H-1 VISA

INTRODUCTION

The H-1b visa is a very versatile tool. 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 (only 4 visas allow this: H,E,L,O....think of Hello)! In effect, a foreign person can come to this country and never leave, using the H1 visa as a vehicle. It is often used by students. There is also a provision for people who own companies, and that is discussed below.

This site will only deal with the H-1B visa, not the H-1A for nurses. Likewise, we do not cover the H-1 for doctors. These are not highly specialized areas and we will be creating a web site just for them at some time in the future. We will alternately call it the H-1, H1, H-1B, or H1B. This will help accustom you to the fact that all of these refer to the same visas.

Students often enter under an F-1 Student Visa and then work for a year under what is known as OPT (Optional Practical Training). In the meantime, they locate an employer willing to offer them a position that qualifies for an H-1b visa. They apply for the H-1b visa before their OPT expires and then begin the journey that changes the course of their lives.

There are many aspects to this visa and we have decided to write up a detailed explanation of some of the areas you may have questions about. You may access the law by going to the tabs at the top and bottom of this page entitled H1B Law.

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.

H-1 VISAS: A BASIC LEGAL SUMMARY

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 nonimmigrant 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.

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

In order to qualify for this visa you must either have a 4-year degree or the equivalent. This is a little more complex than it 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:

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)[We have a link to it above and below in the internet links page] 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.

If 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;
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?

This 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.

PLEASE NOTE: THIS IS A WEB SITE CREATED FOR YOUR INFORMATION AND IS NOT INTENDED TO BE A SUBSTITUTE FOR LEGAL ADVICE NOR IS IT INTENDED TO BE CONSTRUED AS LEGAL ADVICE. IF YOU WISH TO SPEAK WITH A LAWYER CALL 1-800-825-7416 or if you are outlside the country 1-850-668-0270 AND WE WILL BE HAPPY TO HELP YOU PREPARE AN H1B WORK VISA CASE.