H-1B visa is a non-immigrant visa that allows qualified foreign workers in specialty occupations to temporarily work in the United States for a U.S. employer.
Qualifications for an H-1B Visa
You must meet certain educational and work-related requirements in order to qualify for an H-1B visa in the U.S. These include the following:
• Have a bachelor’s degree or higher, or the equivalent in education and experience
• The job must require an advanced degree and/or experience for the position
• You must work in a specialty occupation
• You must be sponsored by an employer
• Your job must meet specific wage requirements
• There must be an available H-1B visa number
Specialty Occupations Needed for an H-1B
A specialty occupation is one that requires application of highly specialized knowledge in a field of human endeavor. In Boston, you see many examples of specialty occupations including:
• Computer scientists, programmers, data management workers, and system administrators
• Mechanical, electrical, electronics, industrial, civil, and computer engineers
• Doctors, surgeons, and other health or medical field workers
• Architects and surveyors
• Social scientists and biologists
• Artists and writers
• Economists, accountants, and auditors
• Professors and teachers
• Lawyers and other workers in the legal field
• Administrators and managers of various types
Wage Requirements for an H-1B Visa
Your job must fit into specific wage requirements. This means that the wage offered by your proposed employer must be either similar to other workers with the same qualifications in the same position or the typical wage for that position in a certain geographical area such as Boston.
Requirements for Someone Without a Bachelor’s Degree
If you do not hold a Bachelor’s degree, you could still apply for an H-1B visa if you have either of the following:
• A professional unrestricted license or certification in your field that allows you to work in your position. You must also be currently working in your field in order to qualify for an H-1B visa. If your employment ends, your H-1B status is also terminated and, consequently, you are no longer in status. The H-1B regulations don’t provide a grace period, but USCIS sometimes approves a change of status if filed within 30 days of termination.
• An equivalent amount of training, work experience, or education equal to a U.S. bachelor’s degree or a higher degree. You must also have expertise in your field. Usually, three years of specialized training or employment will be considered equivalent to one year of college.
Proving an Employer-Employee Relationship
To qualify for an H-1B visa in Rhode Island, Massachusetts, or any other U.S. state, the employer must prove that there is a proper relationship between it and you. Evidence will be required to prove the following:
• The company has the power to hire, direct, and fire employees
• You are being temporarily hired as a specialized worker
• You are qualified for the required duties of the position
• An LCA was properly filed
H-1B Visas for Those Who are Self-Employed
In general, you are not allowed to be self-employed and obtain an H-1B visa for that same company. The H-1B visa requires that there is an independent company that has sole control to hire, pay, supervise, and terminate employees. However, if you own a company, you can provide evidence that others solely exercise control over your work, such as investors or a board of directors. Evidence of such could include a voting agreement, organizational documents, operating agreement, and offer letter. Factors that will be taken into account include duration of the relationship and whether the employer can assign you additional projects.
Length of Stay Allowed on an H-1B Visa
The H-1B visa is initially granted for three years. Under certain circumstances, you can request for this period to be extended to six years. The H-1B visa is a dual intent visa, which means that you may also later apply for a Green Card, making you a permanent U.S. resident.
Can Your Spouse and Children Accompany You to the U.S.?
It is possible for your spouse and unmarried children under the age of 21 to come with you to the U.S. while you are on your H-1B visa status. They will need to apply for an H-4 visa. While on an H-4 visa, your dependents are not eligible to work in the U.S., but they may attend school.
Common Problems with an H-1B Visa Petition
You have the burden of proof to show that you have the required specialized knowledge or qualifications and appropriate job to qualify for an H-1B visa. Many times, USCIS will respond to your petition with a Request for Evidence, requiring you to explain parts of your petition in more detail or provide additional documentation. These requests must be adequately responded to in a timely manner or your petition will be denied.
In addition, there is an annual quota on the number of H-1B visas approved. The current quota for the 2015 fiscal year is 65,000 per year, and an additional 20,000 visas are available for advanced degree holders with a master’s degree or higher. Applications for H-1B visas can be submitted up to six months prior to the start of the fiscal year, as early as April 1st. Therefore, you should submit your H-1B visa application as soon as possible for the best chance at receiving a space.
If, while on an H-1B visa, you quit or are dismissed from your position with the sponsoring employer, you must obtain a change of status to another non-immigrant status, find another qualified employer, or leave the U.S. If you continue to reside in the U.S. without an approved visa status, you are subject to removal and the possibility of not being able to return to the U.S.
Hiring an Immigration Attorney to Assist in Your Adjustment of Status Matter
H-1B visa qualifications can seem overwhelming, given the complexities of the application’s procedures, the exact legal status of a non–permanent United States resident, and the documentation requirements.
Unless a person seeking an adjustment of status is prepared to educate themselves on the detailed nature of becoming a permanent resident, their best option may be to hire a qualified immigration attorney, who can do all the necessary work to make sure that the process runs smoothly and that the legal requirements are met without undue delay or confusion.
If you or someone you know is interested in obtaining an H-1B Visa in Rhode Island, Providence and Boston, immigration attorney George Barsom of the Barsom Law Group can help. Furthermore, because immigration law is federal law, he can handle Adjustment of Status applications for U.S. residents living in any state, not merely the State of Rhode Island and Massachusetts.
Mr. Barsom is fluent in Arabic and the Barsom Law Group has access to attorneys who are fluent in Spanish, Italian, and Portuguese.
The Barsom Law Group can give you and your family members peace of mind in undertaking this difficult and potentially frustrating and time-consuming task. Once hired, the Barsom Law Group will take over the application process from beginning to end, keeping clients informed, and taking the stress out of the process. If you need assistance and require more information, contact the H-1B visa lawyers at our Rhode Island office.
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