LAW OFFICE OF JIMENA G. CABRERA
SPECIALIZING EXCLUSIVELY IN IMMIGRATION LAW
EB-5 INVESTOR REPRESENTATION
It allows employers to hire qualified foreign workers in the U.S. in specialty occupations on a temporary basis. The H-1B classification is for individuals sponsored by companies working in occupations that require a bachelor’s degree or higher. The sponsored employee must hold the relevant degree (or its equivalent) that is necessary to work in the sponsored occupation.
The H-1B Visa process involves two major factors:
The applicant must have a U.S. employer to start the process. When the potential H-1B holder finds a U.S. employer who is eligible and willing to file an H-1B visa on his/her behalf, the employer must file an application for Labor Condition Certification in front of the Department of Labor, once approved the employer will submit an H-1B petition to the USCIS.
Labor Condition Application. The U.S. employer is required to submit Form ETA-9035 (Labor Condition Application). The Labor Condition Application is mandated to be filed online through the Department of State’s iCert Portal System. The employer must have received an approval of the Labor Condition Application before filing the I-129 Form.
Form I-129. After approval of the Labor Condition Application, the employer needs to file the Form I-129 (Petition for a Nonimmigrant Worker), filing fee, supplementary documentation, and the approved Labor Certification Application. The I-129 must have a completed H Classification supplement which is located on pages 11 and 12 of the form. The petitioner is required to ensure proper completion of the H-1B Data Collection and Filing Fee Supplement.
Once the USCIS approves the H-1B petition filed by the employer, the foreign worker can then get the H-1B Visa stamped at a U.S. embassy abroad or change status if he/she is already present in the U.S. The H-1B visa is granted for an initial 3 years period .
The job offered must be filed as a “specialty occupation.” A specialty occupation orders for a bachelor’s degree or an advanced level of education certification. There are distinct positions that may not mandate a bachelor’s degree due to the complexity or particular listed duties. However, most positions categorized under ‘professional’ require a bachelor’s degree.
Examples of qualified positions: engineers, professors, researchers, medical, accountants, attorneys, and architects.
The bachelor’s or advanced degree must originate from an accredited university or college. The degree is required to relate to the H-1B specialty position. If the degree was obtained outside the United States, it must be equivalent to an available U.S. degree.
Work experience is not a pre-requisite if holding a bachelor’s degree. Education requirements may be substituted with at work experience. The general rule for the amount of accepted work experience: 1 year required of University = 3 years of work experience.
•U.S. Employer Requirements
It is required to have the funds necessary to pay the foreign professional. Also, the employer must provide an official job offer. An official job offer signifies that documented evidence can be presented to show a true business need.
Every fiscal year, the H-1B visa is limited by an annual cap of 65,000 visas. However, there are some applicants that are exempt from the cap. Beneficiaries with a U.S. master’s degree or higher are exempt from the cap if it is filed among the first 20,000 petitions available. Also, if the H-1B worker is employed or petitioned on behalf of an institute of higher education it is not subject to the H-1B cap. Related nonprofit entities, nonprofit research, and government research organizations are H-1B cap-exempt.
H-1B Period of Stay
As an H-1B non-immigrant worker, 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 sections 104(c) and 106(a) of 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.
Most non-immigrant classifications require aliens to prove they have a residence abroad that they do not intend to abandon, and that they do not have the intention to immigrate permanently to the United States. That being the case, taking steps towards U.S. permanent residence will, in most cases, jeopardize an alien's chances of acquiring a non-immigrant visa or non-immigrant status. The H-1B category, however, benefits from the doctrine of "dual intent." Dual intent allows a non-immigrant to obtain or continue in a particular -status even though steps may have been taken towards obtaining U.S. permanent residence.
*The information contained herein is intended for general informational purposes only. It is not intended for legal advice. You must consult with an attorney to obtain specific, comprehensive legal advice. Government processing times may change at any time. For current USCIS processing times contact USCIS directly.