H-1B Status in a Nutshell

Congress created a special visa category for people temporarily working in the United States. This type of status allows for full time or part time employment at an American company within the parameters of a specialty occupation. In order to qualify, a foreign national must have completed the equivalent of a US bachelor’s degree or have a combination of work experience and college in a field that is considered by the USCIS to be a “specialty occupation.” Specialty occupations are generally those that require theoretical or practical application of a body of highly specialized knowledge, and attainment of a bachelor’s or higher degree in the specific specialty is the minimum for entry into the occupation in the US. What this means is that the position for which the foreign national is being sponsored must be specialized enough to require at least a bachelor’s degree. Therefore, only certain occupations will qualify for the H-1B visa and those are typically found in the ‘professional’ occupations but can also be found outside of the traditional professions. Often occupations that do not easily fit into a professional mold or that are more complex at the particular employer than the usual industry standard must be rigorously justified to require a bachelor’s degree and usually the size and type of the employer will play a role in the analysis. Once an occupation is determined to be a specialty occupation, the US employer must seek a prevailing wage from the department of labor to determine how much the foreign national must be paid. Later a labor condition application is submitted to the department of labor to ensure that no US workers are being displaced by the sponsorship and that employer will follow all applicable labor and wage laws as they relate to the foreign national. After that stage in the process, the USCIS gets to look at the entire H-1B petition with all previously approved documents from the department of labor and all supporting documents from the US employer as well as the foreign national. And at this stage the petition is analyzed to determine if the occupation is a specialty occupation and if the foreign national meets the minimum educational requirements for the occupation. Also at this stage, the foreign national must be found eligible for the immigration benefit sought, so prior immigration status approvals are reviewed, any status violations are sought out, and other ineligibility criteria are determined. If all passes muster, then the foreign national is approved for H-1B status or visa, depending on whether he or she is present in the US or outside, and he may begin employment with the company that petitioned for him or her. H-1B status can be approved for up to three (3) years with one extension for the same time period. However, additional one-year extensions may be granted after that if the foreign national is applying for a green card through a US employer.

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