HOW
TO OBTAIN A PROFESSIONAL VISA (H-1B)
By Christopher A. Kerosky,
Esq.
The H-1B
visa is a very common visa used for foreign professionals hired by a U.S.
employer. H-1Bs can be hired only for what the government
calls "specialty occupations,"
-- jobs requiring the equivalent of at least a bachelor's degree in the
field.
This is a visa commonly used for IT
professionals of all types – computer programmers,
engineers, computer assisted design professionals. It also includes all variations of other
professionals such as doctors,
engineers, professors, accountants, lawyers, physical therapists and a host
of other jobs.
Under current law, no more than 65,000 H-1B
visas can be issued each year. The first
day to apply every year is April 1st. It is important that your application be
received by the Citizenship and Immigration Services (CIS) on that date (not
before, not after), as the quota is used up within days for each of the last 5
years.
In order to qualify, the employer must
demonstrate that the position requires a professional in a specialty occupation
and that the intended employee has the required qualifications. Typically, the
minimum qualification is a university (bachelor’s) degree or its
equivalent.
Employers must also pay a wage to every
H-1B worker the “prevailing wage”,
that is at least as much as what is typically paid in the region for that type
of work Employers cannot make the H-1B
nonimmigrants work under conditions different from their U.S. counterparts.
The H-1B visa is issued for 3 years, but
can be extended up to 6 years.
Presently, the processing of such visas takes between 4-6 months.
What is required
to obtain an H1B visa?
An H-1B visa requires that the job qualify as a “specialized occupation”
which requires a bachelor’s degree. The
applicant must also have a bachelor’s degree in the same or similar field or
its equivalent.
Am I eligible for an H-1B visa?
In order to qualify, the employer must
demonstrate that the position requires a professional in a specialty occupation
and that the intended employee has the required qualifications. Typically, the
minimum qualification is a university (bachelor’s) degree or its
equivalent.
What can I do on
H-1B visa?
· May legally work in the U.S.
· Travel to and from the U.S. and reenter as many
times as you wish during the validity period of the H-1B visa, as long as you
have a valid stamp in your passport.
· H-1B visa holders may simultaneously seek Lawful
Permanent Residency or a Green Card for themselves and for their family.
What are the limitations of H-1B visa?
· If you change jobs you must reapply for a new visa,
under the new position
· You can only work for the company with petitioned
for you.
Can I bring my
dependents on H-1B visa?
Yes, you may bring your dependents on an H-1B visa. Your spouse and
unmarried children are entitled to a H-4 visa and they can stay as long as you
maintain valid H-1B status..
How long can I
stay in the U.S. on an H-1B visa?
Generally H-1B visa is granted for three years. It may then be extended,
up to six years total.
Can I transfer my
H-1B visa to another company?
Yes, but a new petition must be filed by the company.
What if there is
a change in my working conditions while I'm on
H-1B status?
As long as you continue to provide H-1B services to a U.S. employer,
most changes will not affect your H-1B status. You may change H-1B employers
without affecting status, but your new H-1B employer must file a new visa application
before you start work.
Is there an
annual quota on the number of H-1B visas issued?
Yes. The current annual quota on the H-1B category is 65,000 for each
Fiscal Year.
Is everyone
covered by the annual quota for H-1B visas?
There are certain exceptions to the annual cap:
- Persons who are employed, or
who have received an offer of employment, by institutions of higher
education or a related or affiliated nonprofit entity, as well as those
employed, or who will be employed, by a nonprofit research organization or
a governmental research organization are exempt from the cap.
- Also, there is a special
allocation of H-1B visas for foreign workers with a Master's or higher
level degree from a U.S. academic institution. 20,000 beneficiaries of
H-1B petitions on behalf of persons who hold such credentials are
statutorily exempted from the cap for each year.
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CHRISTOPHER A.
KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced immigration
law for over 25 years. He graduated
from University of California, Berkeley Law School and was a former counsel for
the U.S. Department of Justice in Washington D.C.
Mr. Kerosky has
been recognized as one of the top lawyers in Northern California for 9 years by
“Super Lawyers” Magazine. See www.superlawyers.com.
.
WARNING: The above is a
summary discussing legal issues. It is not intended to be a substitute for
legal advice. We recommend that you get competent legal advice specific to your
case.