Who is Eligible?
The H-1B nonimmigrant visa may be issued to individuals who seek
temporary entry in a specialty occupation as a professional. There
are a maximum of 65,000 H-1B visas issued per year. In many situations,
an H-1B petition may be filed even when the cap has been reached
as long as the petition indicates that the worker will start working
on or after the beginning of the Fiscal year. The Immigration and
Naturalization Service Fiscal Year begins October 1 of each year.
Some examples of "specialty occupations" include accountant,
computer analyst, engineer, financial analyst, scientist, architect
and various types of supervisors and managers. The petition can
be approved with a combination of university education and real-world
experience. Together this would be deemed equivalent to a four-year
bachelor's degree. A first time H-1B Alien may not commence working
for his/her sponsoring Employer until the H-1B application is approved.
If the Alien is already in H-1B status, then under the rules of
Portability, the Alien may begin working for the new sponsoring
company upon the mere filing of the H-1B. Expedited Premium Processing
is available in this category.
How to Apply
A Labor Condition Application (LCA) is first filed with the U.S.
Department of Labor (DOL). Then a Form I-129, Petition for Nonimmigrant
Worker, with H Supplement, and supporting documentation including
the approved LCA is filed with the Immigration Service (BCIS) Regional
Service Center having jurisdiction over the city of intended employment.
A fee of $185.00 is required and the petition must be filed by a
U.S. employer. Once the INS approves the H-1B petition, it will
forward the approval to a U.S. Consulate where the applicant is
adjusting abroad. If the applicant is physically present in the
U.S. and is Changing Status in the U.S., an approval notice will
be mailed to the applicant at a U.S. address. The BCIS does allow
for the expedited Premium Processing for H1b petitions.
For those individuals seeking to perform temporary services in a
specialty occupation, the petition must be filed with the following
- An approved LCA from the DOL.
- Documentation that the job qualifies as a specialty occupation.
A "specialty occupation" is defined as one that
requires the theoretical and practical application of a
body of highly specialized knowledge and the attainment
of a baccalaureate degree or higher as a minimum requirement
for entry into the occupation in the United States. The
employer may meet this requirement by showing that the nature
of the specific duties are so complex or unique that they
can be performed only by an individual with the required
degree, or that the employer normally requires a degree
or its equivalent for the position.
- A copy of the alien's U.S. college degree (bachelor's,
master's or Ph.D.) and/or foreign degree with evidence that
it is equivalent to a U.S. baccalaureate degree or higher.
Evidence of education, specialized training, or experience
that is equivalent to a U.S. baccalaureate degree may also
be submitted to fulfill this requirement. To determine equivalency
to a baccalaureate degree in the specialty, three years
of specialized training and/or work experience must be demonstrated
for each year of college level education that the alien
lacks. To show equivalency to a master's degree, the alien
must have a baccalaureate degree and at least five years
of progressively responsible experience in the specialty.
- A copy of any required license to practice the occupation
in the state of intended employment.
- A copy of any written contract between the employer and
the alien or a summary of the terms under which the alien
will be employed if there is no written agreement. In the
event that the employer terminates the employment of the
alien prior to expiration of the H-1B visa, the employer
is responsible for providing return transportation of the
alien to his or her last place of foreign residence.
Duration of Visa
An H-1B is approved by INS for an initial period of up to three
years. The maximum term of an H-1B visa is six years, including
Status of Spouse and Minor Children
A spouse or unmarried child of an H-1B visa holder is entitled to
an H-4 visa, and the same length of stay as the principal. The spouse
and dependent minor children cannot accept employment, but can attend
school in the United States.
Who is Eligible?
An alien who has a residence in a foreign country which he/she has
no intention of abandoning, who wishes to come to the United States
to pursue a course of study at an academic institution accredited
by the INS, may qualify for an F-1 visa. The alien must have a valid
educational purpose for coming to the United States, and must be
able to support himself or herself while in the United States without
The applicant must have available sufficient funds and outside financial
support to ensure he or she will not become a public charge or accept
unauthorized employment. He or she must be proficient in English
or receive training to make him or her proficient, intend to depart
the United States at the conclusion of his or her studies, and be
qualified to attend the particular institution. All students are
given permission to be in the United States for "duration of
status," that is for the period of time needed to complete
the educational program plus 60 days.
At the end of the course of study a period of work authorization
may be requested for the purpose of gaining experience in the field
of study, known as "practical training." If qualified,
the student may also change non-immigrant status to a temporary
non-immigrant work visa or adjust status to a permanent resident
Phoenix based Arizona Immigration
Law Firm providing Immigration services in Phoenix, Arizona
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