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The H-1B visa is the visa set aside for "professionals". According to federal regulations the position to be filled by the foreign worker must require the services of a professional, and obviously, the foreign worker must qualify as a professional.
For immigration purposes, a professional is defined as someone with a United States four year Bachelors degree or the equivalent. If the foreign worker’s education is not the equivalent of a U.S. four year Bachelors degree, the regulations provide that the person’s experience can be factored into the determination. Three years of on the job experience are equivalent to one year of U.S. level university education. Therefore, it is entirely possible for someone with zero university education and twelve years of experience to qualify as a professional eligible for the H-1B visa. Likewise, someone with one year of university level education and at least nine years of experience qualifies as a professional and so on.
In determining whether a position requires the services of a professional both the INS and the Department of Labor look to the general practice in the industry. If the minimum requirement for entry into the field is a Bachelors degree, then the position is considered to be professional in nature. For example, a Bachelors degree in electrical engineering is not required for employment as an electrician but it is required for an electrical engineer.
To achieve H1B status, you must first obtain an appropriate offer of temporary employment from an employer.
Your employer must follow the following three step procedure:
1. Obtain the approval of a Labor Condition Application (LCA) from the regional office of the U.S. Department of Labor (DOL). The LCA is a one-page document in which your employer attests that you will receive the same wages and working conditions as similarly situated U.S. workers, that there is no strike or lockout of such workers, and that other workers have been notified of the submission of the LCA to DOL.
2. Obtain the approval of H-1B petition from the INS. The petition should describe your employer, the proposed employment, and your qualifications. It should be accompanied by the approved LCA and other appropriate documentation, (e.g. a letter offering you employment, a copy of your diploma, a borchure and/or annual report regarding your employer).
3. If you are maintaining legal nonimmigrant status in the U.S., your employer may request that the INS change your status to H-1B. However, if you exit the U.S. after obtaining H-1B status, you must obtain an H-1B visa abroad in order to return to the U.S. Only if you have violated or overstayed your nonimmigrant status must you exit the U.S. and apply for an H-1B visa at a U.S. Embassy or Consulate abroad.
The H-1B visa eventually facilitates the permanent residency process, a/k/a the green card, because it is not subject to the doctrine of immigrant intent. This means that a qualified immigrant may process her/his permanent residency, or green card, while she/he works in the United States with an H-1B visa.
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FAMILY MEMBERS
Your spouse and unmarried, minor children may receive H-4 status. This allows them to reside in the U.S. for as long as you maintain H-1B status. Persons in H-4 status are not permitted to be employed n the U.S.
However, if your spouse or children independently qualifies for a working visa, they may apply to INS for employment authorization. |
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