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Home »» Knowledgebase»» Immigration

Working in America. The H1B Visa

by: Maury D. Beaulier

What is a Visa?

A "Visa" is simply a stamp in a passport that gives the passport holder authorization to enter the United States. The INS (Immigration and Naturalization Service) handles most matters involving visas. You may find an immigration lawyer to help you with your H1 visa or any other visa on this site.

What is the H1-B Visa?

The H1-B visa is also commonly called a "work visa" or "work permit." This is the most common form of temporary work visa. It enables the foreign worker to enter the United States to work temporarily in a professional capacity. H1B Employment opportunities in the state of Minnesota, which reflect the national trend, are abundant, so abundant that employers are seeking out the assistance of foreign workers to fill the gaps in the workplace. To locate an H1B job in the U.S. use the links at the right to draft and post your resume.

The government requires at least five agencies to certify a foreign employee for H1B work in the United States, often a long process in itself. But the government recently made this process even more arduous by reducing its funding to one key player in the certification process, the State Economic Security Department. This cut in funding has had a grave impact on this state's, as well as this country's, ability to recruit and retain foreign professionals for employment, especially those H1B professionals with technical experience and in the field of health care.

How Do I Qualify?

To qualify for an H1-B foreign workers must fit into a category of "priority workers" which include:

H1B workers with advanced degrees or exceptional ability; H1B professionals (Bachelor's Degree or the equivalent); H1B skilled workers and others.

Generally, foreign workers must also demonstrate that the occupation sought is of a special nature that cannot be easily filled with the workforce available in the United States. Oftentimes demonstrating the special nature of a position requires a statement by the sponsoring employer. The applicant should also be able to demonstrate advanced education skills either through a degree from a foreign university or equivalent employment history. Within each of these three main categories, there are H1B sub-groups, all with their own requirements. It should be noted that there is typically a backlog for H1B workers from China and India in the second and third H1B preference category. To qualify as a H1B "professional" under U.S. immigration laws, you must have at least a bachelor's degree or its equivalent. Work experience may satisfy this prerequisite if the work was in a field that generally requires a bachelor's degree. Additionally, the foreign worker must be employed in a "professional capacity." This means that the employment must be a legitimate professional job requiring a professional education and paying a commensurate salary. The foreign worker cannot simply be engaged in the employment as a hobby or for religious purposes.

The H1-B visa is not only for those attempting to gain entry into the United States, but also for those already in this country, for example, an individual in the United States on a student visa may seek an H1-B visa to remain in this country after their student visa expires. Requirements for foreign nationals already in the U.S. is similar to the requirements for non-resident aliens. They must also demonstrate their specialty and credentials just as if applying from abroad.

The H1-B visa is also linked to the particular employer sponsoring the foreign worker. Not only must you have a sponsoring employer to apply, but the H1-B cannot be transferred for employment with any other employer. In other words, if you seek to change jobs, you must re-qualify and reapply with the new employer.

In today's employment market, professionals in the areas of software development, informational systems, nurses and other health care professionals are in short supply and high demand. As a result, numerous H1-B visas are issued in these fields each year. However, the number of H1-B visas issues each year is strictly limited and is reached earlier and earlier each year. The application process for H1-B visas begins in October. In 2000, the H1-B quota was reached by mid-March.

Even after the limit of H1-B visas is reached each year, demand for professional workers remains high. It is for that reason that the U.S. legislature has debated increasing the number of H1-B visas for these particular professions. Despite these efforts, to date, no additional visa categories have been authorized.

REQUIREMENTS:

  • U.S. Bachelors Degree or foreign equivalent (if degree is foreign) analysis by independent credentials evaluations service attesting that foreign degree is equivalent to U.S. Bachelors Degree; or
  • Professional job offer which closely parallels the training and background of the particular employee; and
  • 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.

Must I Leave my Family?

No. A professional worker's spouse and any unmarried children under the age of twenty-one (21) are also allowed to reside in the United States for the same period of time as the H1-B remains in effect. The spouse and minor children must complete a H4 visa application before residency is allowed.

How Long May I Remain in The United States on the H1-B Visa?

Generally, the H1-B visa is valid for three years. However, it may also be extended for an additional three years resulting in a six-year maximum. If you seek a second H1-B because you changed employers, this will not extend your stay under the H1-B for another six years. The absolute maximum duration for a visa under the "H" category is six years.

What Happens when my H1-B expires?

After your H1-B visa expires, you must leave the country for no less than one year. After the one year period has elapsed, you may once again reapply for the H1-B. However, one of the greatest advantages to the H1-B visa is that it allows the professional worker to seek permanent residency, or a "Green Card" for the worker and his/her entire nuclear family while working in the United States.

Given the complexities of the system, professional representation for those seeking employment in the United States is well advised. Often, mitigating circumstances may be overlooked by those unfamiliar with the system. Language barriers often lead to even more difficulties and frustration.



About The Author
Maury D. Beaulier is part of a 29 attorney immigration law firm handling cases for clients across the United States and abroad. The firm and its members are recognized leaders in the U.S. Immigration and Naturalization process including asylum cases, work visas, investor visas and family based immigration. You may reach Mr. Beaulier at (952) 746-2153 or thorugh his immigration website located at www.workvisalawyers.com.



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