H-1B Specialty Occupation Visa

Specialty Occupation Visa (H-1B)

Daytona Beach Immigration Attorneys

The H-1B nonimmigrant visa allows an alien to enter the United States to work in a specialty occupation for a United States employer.

General Requirements:

  • The job offer must be in a specialty occupation. Specialty occupations normally require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or its equivalent.
  • Significant experience, or a combination of some education combined with relevant experience in the specialty occupation, may replace the bachelor’s degree requirement in some cases.
  • If the specialty occupation requires a particular state or federal license or certification, the alien must hold, or be able to obtain within one year of admission, the relevant license.
  • The employer must get Labor Condition Application (LCA) approval prior to petitioning for the alien.
  • The employment of the alien must not adversely affect the working conditions of United States workers, and the alien must be paid 100% of the prevailing wage for the specialty occupation in the given area.
  • The alien is not required to maintain a foreign residency.
  • H1-B visas allow dual intent. The alien may enter on the nonimmigrant H-1B visa with the intent to procure permanent residence in the United States.
  • If the position requires a licensee the alien beneficiary must have the license to qualify.

Derivative Benefits and Time Limitations:

  • The spouse and unmarried children under the age of 21 may accompany the principal H-1B visa holder to the United States on an H-4 visa. However, H-4 visa holders may not accept employment unless they independently qualify for another nonimmigrant status for which employment is authorized.
  • An H-1B visa allows the visa holder and accompanying H-4 beneficiaries to remain in the United States for an initial period of up to three years, with the possibility to extend the visa for an additional three years. Further, any time spent outside of the United States during the validity period of the visa may be “recaptured” and used to extend the alien’s authorized presence.

Procedure:

  • The sponsoring employer must first file an LCA with the Department of Labor.
  • Upon approval of the LCA, the alien then submits a petition for a nonimmigrant worker to U.S. Citizenship and Immigration Services along with a copy of the approved LCA. The petition must include documentation to prove eligibility for H-1B classification.
  • Upon approval of the petition, the alien applies for a nonimmigrant visa at the appropriate consulate. The alien must then schedule an interview appointment with the consulate. If the alien is maintaining a lawful nonimmigrant status in the U.S. he or she may apply for a change of status to H-1B.
  • After a successful interview, the consulate will issue the visa and the alien may legally travel to the United States and seek admission at a port of entry.
  • Certain aliens present in the United States may be eligible to change their status to H-1B.
  • The annual cap for H-1B workers is set at 65,000, and the demand for the visa is generally high. The petition must be filed on April 1 to maximize the chance of obtaining a visa number.

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