H-1B - a specialty worker

To qualify for an H-1B visa, a person must be a specialty worker. These workers must demonstrate that they possess expertise in their field, usually by having higher education degrees or significant work experience in their industry. The H-1B, however, is also available to fashion models of “distinguished merit and ability.” Certain government-to-government or Department of Defense projects may also hire people who qualify for the H-1B visa.


H-1B applicants must demonstrate several requirements:


1.      The applicant must have a valid employer-employee relationship with the U.S. employer in question.


2.      The Job must qualify as a specialty occupation according to the USCIS standards (which we discuss later.)


3.      The applicant’s role must be in a specialty occupation.


4.      The worker must earn a prevailing wage based on the usual pay for the position to workers local economy in the job's location.


H-1B applicants must be hired for a job position, which requires work that is performed in the United States. The employee must have a specific background, which qualifies him or her for the post. A bachelor's degree or its equivalent is required. Someone without a degree may prove that they have three years of work experience in the field for every year that people spend in an appropriate degree program (e.g. 12 years of experience is required to exempt a worker from holding a 4-year bachelor's degree.) Some workers, like physicians, will need to meet the state licensing requirements in addition to having the necessary qualifying education.


To ensure a worker can receive an H-1B visa, the employer is required to have filed a Labor Condition Application (LCA) with the U.S. Department of Labor. 


H-1B workers may apply for extensions of their stay in the United States, providing that they are in the same employment position. Extensions may be granted twice for a maximum of 6 years. To remain in the states beyond that, the worker must have already commenced the process to obtain a permanent residence in the United States. The employer may file an I-140 application to help the worker qualify for a Green Card. A worker may stay in the country for up to three years while they wait for a Green Card to become available.


H-1B and Green Cards


We've already learned that temporary visa applicants must always declare that they plan to return home and not remain in the States permanently. The H-1B visa is a unique exception in that eligible people may apply for a Green Card at the same time they do for an H-1B. However, if a person is not entitled to a Green Card and they indicate they plan to stay permanently, the H-1B visa application will be rejected.


A Note about the H-1B Cap Lottery


The Immigration Act of 1990 (IMMACT), which created the H-1B visa, placed a limit on the number of these visas issued each year. As you might imagine, every year hundreds of thousands of people apply for limited visa opportunities. The law allows 65,000 regular H-1B workers and 20,000 workers under the advanced degree requirement exemption (those are applicant who graduated form the master’s degree programs in the U.S.). To make the process as fair a possible, USCIS conducts a lottery with the applications. They choose the 20,000 advanced degree spots first. Then, the remaining advanced degree applicants go back into the general pool, and the remaining 65,000 ordinary H-1B workers are chosen.


Is it true that an H-1B holder’s spouse may work?


Spouses and unmarried children under the age of 21 may accompany an H-1B worker by receiving H-4 visas. After a policy created by President Obama in 2015, spouses of H-1B workers may work while in the United States, but the employee's children may not. H-4 visa holders are allowed to remain in the United States for up to six years provided the holder of H-1B maintains his/her status as well.

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