EMPLOYMENT BASED NON-IMMIGRANT VISA CATEGORIES

H-1B CLASSIFICATION, SPECIALTY OCCUPATION

One of the most commonly used visa categories, the H-1B visa (temporary worker qualified to perform services in a specialty occupation) is applicable to members of the professions who are employed in a professional capacity. This visa category is regularly subject to changes in rules and regulations.

Occupations which frequently employ H-1B temporary workers include: accountants, lawyers, computer specialists, scientific researchers, foreign exchange brokers, traders and bankers. Any professional occupation is, by definition, likely to qualify.

THE SPONSOR AND DOCUMENTATION OF A SPECIALTY OCCUPATION

A U.S. employer must act as a sponsor and be willing to submit a petition on the employee's behalf to the Immigration and Naturalization Service office having jurisdiction over the area of intended employment. To document a job position as a "specialty occupation", the employer must demonstrate to the Immigration Service that the proposed position requires a Bachelor's degree or its equivalent in a specific field as a minimum qualification for entry in the position and that the proposed employee possesses at least a Bachelor's degree from a U.S. academic institution or its equivalent in a related field. Educational equivalency evaluations from recognized evaluators are required when an alien has a degree from a foreign academic institution or only practical work experience and little or no actual academic experience.

LABOR CONDITION APPLICATION

A significant concern in obtaining H-1B classification is proper documentation of a Labor Condition Application which must be completed by an employer and subsequently certified by the U.S. Department of Labor. The employer attests in a Labor Condition Application form to compliance with specific minimum wage and working condition requirements.

Proper documentation of compliance with these working conditions includes: evidence that an employer is willing to pay a proposed employee the "actual wage" or "prevailing wage," whichever is greater; evidence that employment of an H-1B alien will not adversely effect the working conditions of similarly employed workers; evidence there is no strike, lockout or work-stoppage in the H-1B occupation; and evidence that notice has been provided to existing workers employed in the H-1B occupation.

THE PETITION APPROVAL

A petition approval may be granted by the Immigration Service initially for three years and extended a total period of six years. Under certain circumstances an H-1B petition may be extended in 1-year increments beyond the 6 year maximum. Dependents of the H-1B beneficiary enter under H-4 classification and are not authorized to work but may enter and remain as long as the underlying H-1B visa is valid. In the event the Immigration Service denies a petition, an appeal may be made to the Immigration Service's Administrative Appeals Unit (AAU).

OBTAINING THE VISA (CONSULAR PROCESSING)

With few exceptions, the petition approval becomes the most important supporting document contained in the application for a visa at a U.S. Embassy or Consulate General abroad. Generally, the alien must make an application at a U.S. Embassy or Consulate General for a visa. This process varies from consulate to consulate and may vary according to the applicant's country of citizenship. The visa or admission time is usually limited by the validity period of the approved petition (see the Department of State, Visa Reciprocity Document Finder). Upon entry to the U.S., an Immigration Officer at the port of entry notes the classification and period of admission on an Arrival/Departure document.

Extensions of H-1B visa classification are generally available providing the total period in H-1B classification is less than 6 years. Under certain circumstances an H-1B petition may be extended in 1-year increments beyond the 6 year maximum.

Visa re-validations (renewals) may be obtained while abroad or applied for while in the U.S. (See the Department of State, Visa Revalidations).

The H-1B visa classification can be one of the most beneficial visa categories for an employer who has the need to employ workers with specialized knowledge. The process requires the employer to clearly present and document job position requirements, the alien's credentials and the labor condition application. In cases where permanent resident status is sought concurrently, the H-1B classification permits the important concept of "dual intent". Therefore, permanent resident intent does not violate the H-1B classification.