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H1-B Visa for Employment in the U.S.

Posted by attorney Kevin Leeper

The H-1B visa is designed to attract highly skilled professionals in a specialty occupation to work in the U.S. on a temporary basis. In an H-1B application process, the employer is the petitioner, while the alien worker is the beneficiary. The U.S. employer must offer employment in a specialty occupation, either on a full time or part time basis. A specialty occupation requires theoretical and practical application of a body of specialized knowledge. Examples of specialty occupations include engineers, nurses, professors, researchers, computer programmers, and other professionals.

The educational requirement specifies that the alien possess at least a bachelor's degree or its equivalent. If the applicant was awarded the degree from an institution not located in the U.S., that degree must be evaluated to determine if it is comparable to a U.S. awarded degree. If the alien possesses a U.S. degree or its equivalent, no prior employment experience is required.

If an alien does not meet the educational requirements, 'degree-equivalent' experience or training may be substituted, whereby three years of professional experience is considered equivalent to one year of college education.

Furthermore, if a license is required under state law to practice a specific specialty occupation, the alien must hold the appropriate license. The employer must also pay the minimum prevailing wage, as determined by State Employment Agency rules or other approved standard guidelines.

2. The Basic Requirements to Apply for an H-1B Visa

The H-1B is a temporary employment-based visa for alien workers in specialty occupations. U.S. employer can sponsor a H-1B visa petition. The maximum stay of an H-1B visa holder is six years, but the initial request may not exceed three years. The salary of the H-1B applicant must match or exceed the the prevailing wage for that occupation.

For a period not to exceed a total of six years, an H-1B visa is available to an alien employee:

1) who will be incumbent in a temporary position;

2) who will perform services in a specialty occupation;

3) the U.S. employer has obtained an approved Labor Condition Application for the alien employee.

Here, "temporary" is defined as that it is not permanent, or that it is for a definite term as opposed to an indefinite term. Also, most professional jobs are classified as "specialty occupations".

6. How To Apply for an H-1B

Professional workers with at least a bachelor's degree or equivalent work experience may be eligible for this non-immigrant visa. All H-1B workers must begin with a petitioning employer. It is not possible to be a self-employed H-1B worker. The petitioner must have a legitimate job opening available, and must agree to pay the alien worker the prevailing wage for the occupation in the area where the work will be done.

For more information please feel free to contact one of our specialists at Lewis & Leeper

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