Are You a Business Professional looking for H-1B Status?

Introduction

U.S. Immigration Law makes special provisions for persons who are professionals to work in the United States. Therefore, if you have a college or university degree, you may be eligible to apply for H-1B (temporary professional, also known as specialty occupation) classification. Under some circumstances, a person without a degree, but with many years of professional level experience may qualify for this category as well. Certain professionals from Canada and Mexico may enter the United States under the North American Free Trade Agreement (NAFTA). If after reading this, you feel that you are qualified to work in the United States as a professional, you should contact an attorney who specializes in immigration law or the closest Immigration Service office, U.S. Embassy, or U.S. Consulate.

H-1B Professionals

Although the law uses the term "specialty occupations", most people refer to this category as the "temporary professionals" category. This category allows persons who are classified as "professionals" to work for up to six years in the United States. Engineers, certain programmers, lawyers, architects, and many others fit in this category.

Requirements For H-1B Status

To qualify for H-1B temporary professional status, four requirements which must be met:

1. A U.S. Employer. To obtain H-1B status, you must work for someone else. Self-employed persons are not eligible for H-1B status. In addition, the employer must be a United States company. It is not possible to obtain H-1B status to work for a foreign company, unless that company is also registered in the United States.

Edward R. Litwin is a specialist in Immigration and Nationality Law, certified by the Board of Legal Specialization of the State Bar of California. Litwin & Smith has helped thousands of professionals to obtain work permission and to immigrate to the United States.

2. A job that requires a specific degree. The job or occupation must require the attainment of a bachelor's or higher degree as a minimum for entry into the occupation. Therefore, positions which do not require a degree such as carpenters, plumbers, pilots, secretaries, etc. will not qualify for H-1B classification. For some occupations, it is not clear whether they require a degree or not; this will depend on the circumstances surrounding the job. For example, certain design and computer occupations may or may not require a degree, depending on the nature of the job duties and the employer's needs. The employer must demonstrate that the position normally requires a degree by proving one of the following:

a. a bachelor's degree or higher is generally the minimum, true requirement for the position.

b. the degree requirement is common in the industry or, alternatively, the position is so complex or unique that it can be performed only by an individual with a degree.

c. the employer normally requires a degree for the position, or

d. the specific duties are so specialized and complex that the knowledge required to perform the duties is usually associated with attainment of a bachelor's or higher degree.

3. A college degree. Since it must be proven that the position requires a degree, it is necessary that you have a degree. In addition, the degree must be relevant to the position. For example, a person with a degree in Biology would not qualify to perform the job of a civil engineer. If your education is from outside the United States, it is usually necessary to obtain an education evaluation to determine whether it is equivalent to a United States degree. If you do not have a degree, you will normally not qualify for H-1B status. However, if you have many years of experience, it may be possible to prove that your experience is equivalent to a college degree. Equivalency can be shown through an evaluation by a college official, through college-level equivalency examinations, or through certification from nationally recognized professional associations. In addition, equivalency can be determined by a three-for-one formula, that is, three years of specialized training and/or work experience can be substituted for each year of college level training which you may lack. However, the three-for-one formula also requires professional level expertise as demonstrated by testimonials from two recognized authorities in the field or membership in a recognized association.

4. The prevailing wage. Congress is concerned that employers do not attempt to use "cheap" labor to replace U.S. professionals, therefore, in order to obtain an H-1B visa, the employer must pay at least the prevailing wage. The prevailing wage is the normal salary paid to similarly employed U.S. workers. Congress does not want employers to pay non-U.S. workers a salary less than U.S. workers are being paid. For example, if a company offers a job to a software engineer, at $70,000 a year, but it is determined that the prevailing wage is $78,000 per year, the person will not be able to obtain an H-1B, unless the employer raises the salary to $78,000 a year.

H-1B Procedure

The process for an H-1B visa takes approximately 45-90 days. There are three steps in the procedure (with an additional fourth step if the person, applying for the visa, is outside the United States.)

1. Prevailing Wage Determination.

The initial step in the H-1B process is to determine the prevailing wage for the particular occupation. This is usually done after the employer determines the minimum educational and experience requirements for the particular position. Some positions require only a bachelor's degree and no experience. Such positions will have a lower prevailing wage. Other positions may require a Master's or Ph.D. degree or a number of years of experience. The prevailing wage for these positions will be somewhat higher. The prevailing wage can be determined by contacting the California State Employment Development Department office, looking to printed surveys, or contacting other employers to determine what they are paying similarly employed workers. If the employer is paying its employees a salary that is higher than the prevailing wage, this higher salary must be the one offered to the alien employee.

2. Labor Condition Application.

Once the prevailing wage has been determined, the employer must file a labor condition application with the Department of Labor. This process, not to be confused with the labor certification application process which must be followed by certain people who wish to immigrate to the United States (See "Would You Like to Immigrate to the United States Through Employment?" by Edward R. Litwin), is an application signed by the employer confirming, among other things, that:

a. the employer is offering the position to the H-1B applicant at the prevailing wage or at the wage being paid to other similarly employed persons within the company, whichever is higher; and

b. the employer has given its employees notice of the filing of the application by either a posted notice or by notice to a union representative, if any.

3. H-1B Visa Petition.

After the labor condition application has been approved, the employer will file a Petition for Nonimmigrant Worker (Form I-129) with the Immigration Service. Accompanying this form will be information and documentation about the employer as well as information and documentation about the person being petitioned for including résumé, school records, education evaluation, etc. If the employer is petitioning for someone already legally in the United States, that person may change their status in the United States without having to leave the United States. Many people are under the misconception that they must leave the United States to obtain H-1B status. That is not generally so. However, should persons in the United States who have been granted a change to H-1B status later travel outside the United States, they will need to obtain H-1B visa stamping in their passports before they can return.

4. Visa Application.

If an employer files a visa petition for a person who is outside the United States, there is one additional step before that person can come to the United States to work in H-1B status. That person must apply for and obtain an H-1B visa from the closest U.S. Embassy or Consulate. The visa is applied for, based on the employer's visa petition which has been approved by the U.S. Immigration Service.

Validity of H-1B Status

A person is authorized to remain in the United States for up to six years in H-1B status. Frequently, during this period of time, a person is able to obtain permanent residence. However, if that is not the case, the person is required to leave the United States for a period of one year. After that, he or she may reenter for another six years. Under certain circumstances, the person may be allowed to remain in H-1B status beyond six years, if he/she is in the permanent residence process. Persons may apply for H-1B status even if they also have the intention to immigrate to the United States.

Annual Limit of H-1B Petitions

There is a limit of 85,000 foreign nationals per year who may be issued H-1B approvals. When the cap is reached, no further petitions can be approved by the Immigration Service until the next fiscal year. The fiscal year begins on October 1 and ends the subsequent September 30. Because the annual limit is being reached on the first day that filing is allowed, the USCIS has established a "lottery" system. Less than 50% of those petitions that are submitted actually are allowed to be filed. Persons with advanced degrees from U.S. universities have better chance of approval under the lottery system.

Citizens of Specific Countries

1. Canada and Mexico

Canadian and Mexican citizens may also be eligible for TN (Trade NAFTA) status in lieu of some H-1B occupations. The United States, Canada, and Mexico have agreed upon a specific list of professionals that fit into this category.

2. Singapore and Chile

Due to specific agreements with these two countries, their nationals come under a separate H-1B annual limit, making it easier to obtain H-1B approvals.

3. Australia

The U.S. has entered into a treaty with Australia which allows their nationals, who meet the H-1B requirements, to receive E-3 visas. The advantage is that they are not limited by the H-1B lottery system.

This answers most of the frequently asked questions about H-1B classification which we receive in our office. If after reading this you have questions about working in the United States or any other immigration matters, you may call Litwin & Smith and arrange an appointment either the San Francisco, South San Francisco, or Santa Clara office. There is an initial consultation fee for the first half hour. The information in this article does not constitute legal advice. The law is constantly changing, and we make no warranty of the accuracy of information.