H-1B VISA

The laws regarding the H-1B Visa is constantly impacted by US politics and economies. It changes over the time and concerned candidates should stay informed and updated.

The H-1B nonimmigrant category is for foreign workers in "specialty occupations". It allows foreign workers to enter the U.S. and work in a variety of fields. H-1B workers do not need to maintain a foreign residence during their stay in the US. The "H" visa, as well as the "L" visa, is specifically exempt from the presumption of immigrant intent. As a result, H-1B workers may seek permanent residence concurrently with petitioning for or holding H-1B visa. For most foreigners, a H-1B Visa is a first step toward a US green card.

To qualify for a H-1B visa, the following requirements must be met:

A U.S. Bachelors Degree or a foreign equivalent
Professional job offer which closely parallels the training and background of the particular employee
Filing of a Labor Condition Attestation with the U.S. Department of Labor
Prevailing wage survey conducting by the local state employment agency to protect the employer
I-129H petition approved by INS

The spouse and unmarried children under the age of 21 of a H-1B Visa holder are allowed to come and stay in the U.S. under the H-4 status. Although they are permitted to study in US, they are not permitted to work, unless they independently obtain a work visa.

Procedures

The H-1B visa is not self-petitioned. It means, the U.S. employer will file a petition with INS on the alien's behalf. The applicant should discuss this matter with the prospective U.S. employer at the earliest time.

The US employer must first file with the Department of Labor (DOL) a labor condition application (LCA) including certain attestation including "wage rate" attesting. The employer should also attest that the job falls under the classification of a specialty occupation, and that the alien qualified for the proposed position. Note: a labor condition application is different from the petition for a labor certificate.

After wage conditions are met, the employer will submit the LCA form to the Department of Labor. After verified, accepted and certified, the LCA form will be returned to the employer. Only once the LCA is certified by the DOL may the employer petition the INS for permission to hire the H-1B workers.

The employer then must petition to INS by filing Form I-129 (Petition for Non-immigrant worker) with the INS office which has jurisdiction over the location of employment. This should include a base fee of $110, plus $1,000 for H-1B petitions. Employers seeking exemption from the $1,000 fee should submit Form I-129H.

The employer must submit documents to establish that the alien will be employed in a specialty occupation, and the alien has the qualifications, expertise and credentials.

After approval, INS will send Form I-797 (Notice of Action) to the U.S. employer. The employer should then send the alien all required documents. The alien should then apply for a H-1B Visa at the U.S. consulate in his or her residence country.

Forms and Documents

Both the alien and the U.S. employer are required to submit forms and documents for the H-1B Visa. The following documents are to be supplied by you:

A completed visa application Form OF-156.
One recent photograph 1 & 1/2 inches square (37mm x 37mm) of each applicant, with the entire face visible. The picture should be taken before a light background and without head covering.
A passport, valid for travel to the United States for at least six months longer than the intended visit.
Form I-797 (The Notice of Action). This petition should be sent to the applicant by the U.S. employer.
Proof that your academic and work qualifications are equivalent to that which is necessary for obtaining the visa.
Copies of academic transcripts.
A resume and recommendation letters from your previous employers.
Proof of any membership the alien has in relevant trade or professional organizations.
A letter from the alien's employer detailing the job and its requirements.
The prospective U.S. employer will send the following documents to the applicant:

Form I-797, The Notice of Action.
A copy of Form I-129.
A copy of the approved LCA.
A copy of the letter the employer wrote to the Consular General at the U.S. consulate in the applicant's country.
A copy of the letter the employer wrote to the INS.
A letter of sponsorship/appointment.
A tax return statement of his/her business, if available.