H-1B Visa (Professionals in Specialty Occupations and Fashion Models)
The H-1B visa category allows organizations with a Federal Identification Number/IRS tax number to employ a foreign professional to work in a specialty occupation for up to six years. Examples of specialty occupations include accountant, computer analyst, engineer, financial analyst, scientist or architect.
I. Benefits of the H-1B Visa
A. You do not have to maintain foreign residence and show intent to return to your home country while applying for the visa
B. Your dependents can stay with you as long as you maintain your H-1B status. They can also attend school
C. You can freely travel in and out of the U.S. provided you have a valid visa
II. Requirements for the H-1B Visa
A. Criteria for Determining Employer’s Eligibility
To be eligible for sponsoring an H-1B visa, the employer must prove that:
1. The position offered requires knowledge, both theoretical and applied, which is almost exclusively obtained through studies at an institution of higher learning
2. The position requires a specific course of study which relates directly to the position
3. Attainment of a bachelor’s or higher degree in the specific activity (or its equivalent) is a minimum requirement for the position
B. Criteria for Determining Employee’s Eligibility
To be eligible for an H-1B visa, you must demonstrate that you have:
1. Full state licensure to practice in the occupation, if such licensure is required to practice in the occupation
2. Completed the degree required for the occupation or possess experience in the specialty equivalent to the completion of such degree
3. Recognition of expertise in the specialty through progressively responsible positions relating to the specialty
C. Positions Generally Considered Professional
Accountant, Acupuncturist, Chiropractor, Computer Programmer, Dietitian, Electronics Specialist, Fashion Designer, General Manager (where business is complex), Graphic Designer, Hotel Management, Industrial Designer (with B.A.), Interior Designer (commercial), Journalist, Librarian, Medical Records Librarian, Medical Technologist, Minister, Orthopedist, Pharmacist, Social Worker, Technical Publications Writer and Vocational Counselor.
Note: If your position is not listed above, you may want to contact us to determine if the U.S. Citizenship and Immigration Services (USCIS) would consider the position offered to you as a professional position.
III. Applying for the H-1B Visa
You cannot apply for an H-1B visa as an individual. A U.S. employer has to sponsor your H-1B visa. To sponsor you, the employer must:
File a Labor Condition Application (LCA) with the U.S. Department of Labor
File USCIS Form I-129, Petition for nonimmigrant worker with H supplement and supporting documentation and the approved LCA with the USCIS
If you are overseas, you must take the H-1B approval notice to the American Consulate to obtain the H-1B visa. If you are already in the U.S., you can start working for your employer as soon as you receive the H-1B approval notice.
Note: If you are currently on H-1B status, then you can start working upon filing of the new petition.
A. Filing the Labor Condition Application
The Labor Condition Application or Attestation is filed on DOL Form ETA-9035 with the regional office of the Employment and Training Administration of the Department of Labor (ETA-DOL) where you will be employed.
1. The employer must prove to the Department of Labor that:
a. The wage level offered to you (the H-1B employee) is greater of the actual wage level paid to all other individuals similarly employed at the place of employment, or the prevailing wage for the occupation in the area of employment is based on the best information available
b. The working conditions offered to you will not adversely affect other workers similarly employed. Working conditions commonly refer to matters “including hours, shifts, vacation periods, and fringe benefits”
c. There is no strike or lockout in the occupational classification at the place of employment
d. A notice has been provided to the bargaining representative if any, or posted a notice that a labor condition application has been filed. The notice must be posted in two or more conspicuous places for a ten-day period and shall contain
2. Your employer may file an LCA in one of the three methods:
a. Filing through the LCA Online System Your employer may submit the LCA (Form ETA 9035) via the web-based system. The LCA online system is available at www.LCA.doleta.gov
b. Facsimile Your employer may submit the LCA (Form ETA 9035) by Fax. The application must be faxed to 1-800-397-0478.
Note: The cover pages to Form ETA 9035 (Form ETA 9035CP) should NOT BE faxed with the Form ETA 9035.
c. Mail Your employer may submit the LCA (Form ETA 9035) by U.S. Mail. The LCA must be sent to the ETA application processing center at the following address:
ETA Application Processing Center
P.O. Box 13640
Philadelphia, PA 19101
B. Filing the H-1B Petition
An H-1B petition is filed on USCIS Form I-129, along with the Form I-129H supplement and the approved Labor Condition Application (LCA) Form ETA-9035 from the U.S. Department of Labor. Your H-1B petition must include:
1. Evidence that the proposed employment qualifies as a specialty occupation
2. Evidence that you have the required degree by submitting either:
a. A copy of your U.S. baccalaureate or higher which is required by the specialty occupation
b. A copy of your foreign degree and evidence it is equivalent to a U.S. degree
c. Evidence of experience and education, which is equivalent to the U.S. baccalaureate degree
3. A copy of any required licenses or other official permission to practice the occupation in the state of intended employment
4. A copy of any written contract between you and your employer, and a summary of the terms of the oral agreement under which you will be employed
C. Premium Processing of your H-1B Petition
You may have your H-1B petition adjudicated within 15 calendar days by applying for H1B premium processing.
For an additional fee of US $1,000, the USCIS guarantees a prompt decision on your H-1B petition. You will receive either an approval notice, a request for further evidence, a notice of intent to deny the petition, or a notice of investigation for fraud or misrepresentation within 15 calendar days from the date you applied for H1B premium processing. If it fails to respond within 15 calendar days, it will refund the $1,000 fee and continue to process the petition under the expedited process.
D. Applying for the H-1B Visa at an American Consulate
To apply for the H-1B visa, you must furnish the original or copy of the Notice of Action, Form I-797A or B (the approval notice forwarded to your employer when the petition is approved). Your visa application must include the following documents:
1. DOS Form DS-156, Nonimmigrant Visa Application
2. DOS Form DS-157, Supplemental Nonimmigrant Visa Application, for all male applicants between the ages of 16 and 45
3. A copy of your passport which is valid for at least six months beyond the period of stay in the U.S. and with at least one blank page
4. Two identical color photographs showing full face without head covering against a light background. You may wear a headdress if required by a religious order of which you are a member
5. Your resume and education transcripts
E. Duration of Stay
Under current law, you can be in H-1B status for a maximum period of six years at a time. After that time you must remain outside the U.S. for one year before another H-1B petition can be approved. However, foreign nationals working on defense department projects may remain in H-1B status for ten years.
Note: You can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward lawful permanent resident status without affecting your H-1B status.
F. Spouses and Children
Spouses and/or children under the age of 21 who wish to accompany or join you in the U.S. for the duration of your stay can apply for H-4 visas.