In this month’s immigration feature we will look at the H-1B visa.
Jamaica Magazine

THE H-1B VISA

The H-1B visa is the most common visa for foreign professionals seeking to obtain employment in the United States. Thousands of foreign workers are needed each year to facilitate the growth of the country’s economy, because their skills are in high demand. As with attacks on other types of visas in the immigration world, the H-1B visa has received the most attention; because conservatives in Congress, see it as a mechanism for taking jobs away from able Americans. This is far from the truth. Every year, reports are compiled that show that American students are deficient in math and science skills. These reports translate into a shortage of labor in the business, medicine, science and nursing fields. There is an annual limit on the number of H-1B visas granted every year. For the current fiscal year, the cap limit has almost already been reached. In a three part series of articles on the H-1B visa, I will discuss what the H-1B visa is; adjusting status to permanent residency from the H-1B; and the effect of layoffs on the H-1B.

The H-1B visa is a part of the H non-immigrant category of the Immigration and Nationality Act of 1952. There are four types of H non-immigrant categories, which including the H-1B visa are: the H-2B visa for temporary nonagricultural workers; the H-2A visa for temporary or seasonal agricultural workers in short supply; H-1C visa for nurses in shortage areas; and H-3 trainees.

The H-1B category is designed for the foreign worker in a specialty occupation. A specialty occupation is defined in the INS regulations as an “occupation that requires (a) theoretical and practical application of a body of highly specialized knowledge and (b) attainment of a bachelor’s or higher degree in the specific specialty as a minimum for entry into the occupation in the U.S. A job qualifies as a specialty occupation if (1) a bachelor’s or higher degree or its equivalent, is normally the minimum entry requirement for the position (2) a degree requirement common to the industry, or in the alternative, the position is so complex or unique, it can be performed only by an individual with a degree; or (3) the employer normally requires a degree or its equivalent for the position or (4) the nature of specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

An H-1B intending nonimmigrant must have (a) full licensure, if that is required for practice in the state (b) Completion of a U.S. bachelor’s or higher degree or its’ equivalent) in the specific specialty or related field. (c) education, training, or experience in the specialty equivalent to the completion of such degree. An H-1B intending nonimmigrant does not need a bachelor’s degree to qualify for H-1B status. In order to obtain the equivalent of a bachelor’s degree, the applicant has to have (a) an evaluation by a college official authorized to grant credit for training and or experience in the specialty (b) results of college level equivalency exam or special credit programs (c) certification or registration from nationally recognized professionals for the specialty.

An applicant can show the equivalency of a master’s degree with a bachelor’s and five years experience.

The first step in acquiring an H-1B visa, is the approval of a labor condition agreement (LCA). The LCA must first be submitted to the Department of Labor (DOL) for certification. The DOL merely reviews the form for completeness and accuracy. Once the LCA is approved by the DOL, an H-1B package is organized for filing with the Service Center having jurisdiction over the petitioning employer. The package includes: (a) The labor condition application (LCA), The Petition for non-immigrant worker, H supplement is also included with any supporting documents. If the intending H immigrant is overseas at the time that the H petition is approved, the nonimmigrant takes the approval notice to the consulate to obtain the visa.

When an applicant opts for consular processing, they are given an OF-156 application, to complete in order to obtain a visa. Some consulates, will take the approval notice as evidence but others may wait on the cable notice from the State Department. Some H-1B beneficiaries, are exempt from the visa requirement 8 C.F.R. Section 212.1.

When an H-1B applicant completes the OF-156 form and gets his visa stamp in his passport, he can then immigrate to the U.S. Upon entering the country, the applicant will receive an I-94 card, which will have the dates for the applicant’s duration of stay. An H-1B visa, is renewable for up to six years, and initially granted for three years. If the H-1B applicant is already present in the United States, the applicant can adjust his status present immigration status to that of an H-1B. For example, if an applicant is present in the U.S. on an F-1 visa, the student, after approval of the labor condition application, and the Petition for nonimmigrant worker with H supplement, can apply for an adjustment of status.

[B]In next month’s article, I will discuss derivative beneficiaries of the H-1B, and the effects of the economic downturn on the H-1B.

About the author

Sean Keane-Dawes, esq.