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H-1B Visas

Special status for speciality workers

An H-1B visa, known as the “professional worker’s visa,” is reserved for people within “specialty occupations,” who are considered for admission on the basis of their professional education or their skills, or both. It permits U.S. companies to enhance their workforce by employing highly skilled foreigners. It is the most common and, usually, the easiest non-immigrant visa to obtain.

Who is eligible for an H-1B visa?

College degree holders or higher, or

Its equivalent in work experience, or

In rare instances, certain people in specific occupations, such as supermodels, and

A job offer from a U.S. company that agrees to sponsor the visa holder, and

In a position with the sponsoring company that requires the person to hold a four-year degree or its equivalent in experience and the wage paid is the prevailing wage for such a job within that jurisdiction

The spouse and unmarried, minor children of the H-1B visa holder are eligible for H-4 visas, though they will not be permitted to work in the US.

What are the limitations of an H-1B visa?

The visa is good for a maximum of three years, which may be extended another three years. After six years in H-1B status, the person must remain outside the United States for one year before being eligible to apply for another H-1B visa.

The visa-holder may only work for the sponsoring employer in the job specified in the sponsoring employer’s petition. If visa holders wish to change jobs, they must obtain a new H1-B visa. This can be done without leaving the United States by filing a new petition with the U.S. Immigration and Naturalization Service.

With the October 17, 2000 enactment of the American Competitiveness in the Twenty-First Century Act of 2000, applicants may begin working at their new job immediately upon filing the petition. Previously, applicants had to wait for approval before beginning work for their new employer. If the new petition is denied, work authorization ceases.

The number of visas issued had been set at 65,000, but was increased to 115,000 through legislation for the year 2000. The 2000 Act extended the limit to 195,000 for each of the next three years. Furthermore, Section 103 of the Act provides that H-1B visas sponsored by higher education institutions, nonprofit research organizations and government research organizations are not to be counted toward the cap.

What is the procedure to get an H-1B visa?

The sponsoring employer must first inquire at a state or local level what the prevailing wage is for the position expected to be filled by the visa holder.

Sponsoring employer files a labor condition application with the U.S. Department of Labor that outlines specific information about the job, including the prevailing wage and the working conditions.

Sponsoring employer then files an I-129 petition with the U.S. Immigration and Naturalization Service (INS) accompanied by a $110 filing fee, as well as an additional $500 fee imposed under the American Competitiveness and Workforce Improvement Act of 1998.

Once the INS approves the I-129 petition, the visa seeker may then apply for the H-1B visa.

Steps to take

An employer files a labor attestation, Form ETA-9035, Labor Condition Application for H-1B Nonimmigrants, with the U.S. Labor Department Employment and Training Administration. Once the employer gets approval from the Labor Department, the employer then files the following with the Immigration and Naturalization Service: A INS Form I-129, Petition for a Nonimmigrant Worker, along with a $110 filing fee

A INS Form I-129W, which allows the INS to record statistical information as required by the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA)

A fee, as required under the ACWIA: $1000 now, $500 before December 17, 2000

The approved labor attestation from the Labor Department

Proof of the alien’s academic qualifications and professional experience

A letter from the sponsoring company describing its business and the job it intends to fill with the H-1B visa recipient, why the alien is particularly qualified, and including a statement that the company will pay the costs of the alien’s return trip abroad if employment is terminated before the visa authorization period expires

Once the company receives approval from the INS, the prospective H-1B visa holder should then apply for the visa at the nearest U.S. consulate by filing: An optional Form 156, Nonimmigrant Visa Application

A passport photograph

The original H-1B approval notice receipt issued to the company by the INS

Converting Your H-1B Visa

An H-1B visa holder may apply for a change in status or take other steps toward permanent residency without affecting the H-1B status. Called “dual intent,” this kind of petitioning by the visa holder has been recognized in U.S. immigration law as acceptable since the passage of the Immigration Act of 1990.

The Competitiveness Act of 2000 provides some much-needed flexibility in the timing of visa conversions, and petitions for permanent status. If an I-140 application for permanent status has been under consideration by the INS for more than 365 days, the six-year limit on living in the US can be extended until a decision is made on the application. The same policy applies to I-485 change of status applicants, but the time limit on the application is 180 days. Filing or converting an H-1B visa can be a complicated process–you should consult with a qualified immigration attorney before doing so.

How to get H-1B Visa

1. What is H-1B work visa?

The H-1B specialty workers visa is a nonimmigrant visa which allows foreign nationals to enter into the U.S. and perform services in a prearranged professional job. The job must be in a ’specialty occupation’ and must require a bachelor’s degree as a minimum for entry into the field.

Note: The H-1B work visa allows an organization with an IRS Tax Number/ Federal Employer Identification Number to employ a foreign national for up to six years.

2. What is ’specialty occupation’ for the purposes of H-1B visa?

A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent.

Note: Architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.

3. How do I qualify for H-1B visa?

To qualify for H-1B visa, you must:

• Demonstrate that you have the ability to work in the specialty occupation that requires the theoretical and practical application of highly specialized knowledge

• Be coming to the U.S. to earn money or a livelihood working in a professional capacity, and not for pursuing a hobby, for pass time, giving free advice or humanitarian service

• Seek temporary entry into the U.S.

• Have a bachelor’s degree or the equivalent in work experience. You should have bachelor’s degree plus three years of work experience for each year of missing university education. This would be considered four-year bachelor’s degree

Note: This classification also applies to Government-to-Government research and development, or co-production projects administered by the Department of Defense

4. What are the benefits of H-1B visas?

The benefits of H-1B visa are:

• Multiple H-1B visas: In most cases, there are no limits to the number of H-1B visas an individual may have in their lifetime

• Green Card: The H-1B professionals may simultaneously seek Lawful Permanent Residency or a Green Card for themselves and for their family

• Cost of early dismissal: The employer must agree to pay the foreign national the reasonable cost of transportation to go back to his/her home country if the employer terminates employment prior to the end of the authorized employment period. The foreign national will then go back to his/her home country. Normally, this is not a problem since the foreign national usually desires to stay in the U.S. and changes into another nonimmigrant status

• If you change jobs you must reapply for a new visa, under the new position. This does not mean that you have another six years. The H category visa allows you to stay in the country for six years, regardless of whether you changed employers during this period. Those who arrived in the country on H-4 visas, and converted to H-1B status, have to remember that this six-year period starts counting from the day they arrived in the country on their H-4 visa

5. What are the limitations of H-1B visas?

The limitations of H-1B visa are:

• Temporary Duration: Because of the H-1B visa’s temporary nature, individuals who seek H-1B visa must have the intent to remain in the U.S. only temporarily. However, individuals who seek H-1B visas need not maintain a foreign residence and may later petition for Lawful Permanent Residence. If a petition for Lawful Permanent Residence is not made or the petition for Lawful Permanent Residence is denied, the H-1B worker will be required to return to his/her home country at the end of the authorized employment period

• The H-1B Cap: An annual numerical limit is imposed on the number of H-1B visas issued during a fiscal year. For the fiscal year 2003, the cap is 65,000. However, the quota only applies to new H-1B applications, and does not apply to H-1B status holders who are seeking extensions or change of employer

6. What is the validity period of H-1B visa?

Generally H-1B visa is granted for three years. It may then be extended, in the first instance for two more years, and eventually for another one year.

For further extension, the H-1B professional must remain outside the U.S. for at least one year before becoming eligible for another H-1B visa. If the professional acquires permanent residency (Green Card) he/she need not remain outside the country for one year. Certain foreign nationals working on Defense Department projects may remain in H-1B status for 10 years.

The six year limit has been relaxed by a new law on October 17, 2000. Now, you may apply for Extension of Stay of one year at a time, until your Green Card application is processed. The restriction is that you should have applied for Green Card within five years of being on H-1B.

7. Can I bring my dependents on H-1B visa?

Yes, you may bring your dependents on H-1B visa. Your spouse and unmarried children are entitled to an H-4 visa and they can stay as long as you maintain valid H-1B status. However, they may not accept employment, but may attend school in the U.S. You may even bring your servants on B-1 visa.

8. How do I apply for H-1B visa?

An individual may not apply for H-1B visa. H-1B status requires a sponsoring U.S. employer. A U.S. employer has to sponsor the H1B petition to employ a foreign professional.

9. How should an employer petition for H-1B visa?

The Forms to be filed for an H1B petition are:

• Form ETA-9035, Labor Condition Attestation, with the Regional Department of Labor office. Through this application your employer assures the DOL that he/she will provide you with fair salary and equal benefits which are provided to a U.S. citizen. It also states that it was not able to find any U.S. citizen who was qualified for the position

• Form I-129, Petition for Nonimmigrant Worker, with H Supplement, and supporting documentation including the approved LCA should be filed with the USCIS Regional Service Center having jurisdiction over the city of intended employment. When it is approved, the employer or agent is sent a notice or approval Form I-797 and a copy of it is forwarded to the American Consulate

10. What is the processing time for H-1B visa?

The H1B processing time varies because all cases are different. Generally it takes between three to six months to process an H-1B visa. You must wait at least two weeks after you send in your application for a receipt from the USCIS and another two weeks before you call the USCIS to check the status.

Note: When USCIS officials get your application package, they will send you a receipt showing the date your case was received and the receipt number assigned to it. Use the receipt number to track the status of your application when you call the number listed at the bottom of the receipt notice.

11. What do you mean by ‘H-1B dependent employer’?

An employer runs the risk of becoming an ‘H-1B dependent employer’ if he hires too many H-1B employees. Employers are considered to be H-1B dependent if they fall into any one of the following three categories:

• An employer has 25 or fewer full time employees of which more than seven are H-1B employees

• An employer has between 26 to 50 full time employees of which more than 12 are H-1B employees

• An employer has more than 50 full time employees of which 15% or more are H-1B employees

12. When should I file my H-1B petition if I am currently under optional practical training on F-1 visa?

You may file for H-1B status while in your practical training itself. Getting H-1B takes a lot of time and sometimes you might have to wait for three to four months before you resume employment. If you file your H-1B petition while in the practical training, you will have your H-1B ready by the time you are out of training. If the H-1B petition is filed before the expiry of F-1 or B-2, you will not be out of status. If your OPT expires before the H-1B is approved, you cannot legally work until the H-1B is approved.

13. What is the difference between H-1B status and H-1B visa?

An H-1B visa is a nonimmigrant visa issued by a U.S. Embassy or Consulate abroad. H-1B status is a nonimmigrant status issued by the USCIS to foreign nationals already residing in the U.S. or upon entry with an H-1B visa. Legal status allows you to stay legally within the U.S. while a visa allows you to seek entry into the U.S. legally.

14. I have been fired recently while on H-1B status. Can I remain legally in the U.S. by changing status to another nonimmigrant visa category?

Yes, you may apply for Change of Status to another nonimmigrant visa category for which you qualify. USCIS officers have been allowed to exercise their discretion to grant you another nonimmigrant status, if you apply for change of status within 10 days after you are fired.

Note: If you are not planning to depart the U.S. the only way to maintain legal status is to file a new petition under a new employer or change status from H-1B to other nonimmigrant status, such as B-1 or B-2.

15. What is the new ‘displacement’ or ‘no lay-off’ attestation rule?

There are two new ‘displacement’ attestations that apply to H-1B dependent employers:

The first requires the employer to attest that he did not displace and will not displace a U.S. worker employed by the employer within the period beginning 90 days before and ending 90 days after the filing of the H-1B petition based on the Labor Condition Application

The second requires the employer to attest that he will not place the H-1B worker with another employer where:

• The H-1B worker performs duties in whole or in part at one or more worksites owned, operated and controlled by the other employer

• There are employment relationships with the other employer, unless the petitioning employer has inquired of the other employer and has no knowledge that the other employer has displaced or intends to displace another U.S. worker

16. What are the documents required to apply for H-1B visa outside the U.S.?

The documents required for H1B visa application are:

Passport

Documents sent by your employer:

• LCA – Labor Certification Approval

• Appointment letter by your Employer

• Tax Returns Papers of the company (if your employer sends them)

• Copy of letter to the Department of Justice

• Copy of letter to the Consular General of the Indian consulate

• Copy of the official evaluation of your degrees (if your employer sends it)

Your certificates:

• Degree certificate

• PG certificate (if applicable)

• Appointment and Relieving certificates for all the companies where you claim employment or Service certificates from the company giving dates and duration of your service

Dates of any prior stays in the U.S. in H-1B status

Very short description of job duties with the sponsoring U.S. Company

If occupation requires licensure in the U.S., copy of current U.S. license or temporary license

A copy of your resume, any additional diploma or supporting certificates, just for good measure

Two Demand Drafts made in favor of the name specified – one for Processing Fee ($45)* and the other for Issuance Fee ($100)

Two/three passport size color photographs

If processing H-4 visas for dependent family members, copies of biographic and visa pages for all family members:

• Copies of children’s birth certificates

• Copy of marriage certificate

17. What are the documents required to apply for H-1B status when already in the U.S.?

The documents required to process an H-1B petition while in the U.S. are:

• Copy of the biographic and visa pages of current passport

• Present U.S. address

• Foreign address (may be address of parents or closest relative)

• Day and evening phone numbers and/or e-mail address

• Copy of Form I-94 card

• Copy of all prior H-1B approval notices (if currently on F-1 status, copy of Form I-20)

• Dates of any prior stays in the U.S. in H-1B status

• Current resume listing employment history

• Copy of your university or college degree, and if available, copy of university or college transcripts

• If you have ever obtained a credentials evaluation, a copy of the credentials evaluation

• Title with the sponsoring U.S. Company

• Very detailed description of job duties with the sponsoring U.S. Company

• If occupation requires licensure, copy of current license or temporary license

• Social Security number

• Copy of most recent W2

• Copy of most recent pay slip with current employer

18. What factors determine the prevailing wage for an H-1B beneficiary?

Relevant factors in determining prevailing wage include:

• Job title

• Educational and work experience requirements

• Job duties

• Job location

• Labor contract terms

19. What is the checklist for employers of H-1B applicants?

• Copy of employment agreement, if any

• Salary of the foreign worker

• Full corporate name and address

• Address where the foreign professional will be working

• Name, title, phone number, fax number, e-mail address of company contact who will sign the petition

• H1B visa employer’s federal I.D. tax number

• Gross and net annual income for the employer for the most recent year for which such figures are available

• Current number of employees

• Year the company was established

• Company brochure or other relevant company literature, if available

• Number of H-1B workers on staff

• Title and a detailed description of the position, including responsibilities and duties

• Twenty pieces of corporate letterhead stationary

20. How do I revalidate my H-1B visa?

Getting H-1B status and getting your visa stamped are two different things that are often confused. Getting H-1B approval implies that you are authorized to work in the U.S. and getting visa stamped implies that your passport has been authorized to enter the U.S.

Usually H-1B authorizations are issued for a period of three years and the date stamped on your passport would be close to this period.

21. How do I get extension for my H-1B visa?

H1B extension is the extension of authorization to work in the U.S but it is not the actual visa. In order to travel across the U.S you need to get your visa stamped against the new extension, this is known as H-1B revalidation.

22. What is the new legislation on H-1B visa?

The most recent legislation on H-1B is the American Competitiveness in the 21st Century Act of 2000, which became effective on October 17, 2000. The new legislation permits extension of H-1B status past the six-year limit where a labor certification has been pending for 365 days or longer, regardless of whether or not a Form I-140, Immigrant Petition for Alien Worker, has been filed. Another Act on H-1B is the 21st Century Department of Justice Appropriations Authorization Act, effective since November 2, 2002.

23. What is premium processing of H-1B petition?

Through the USCIS Premium Processing Service U.S. employers may pay a $1,000 fee for expedited processing of their H-1B’s. This service guarantees that within 15 days USCIS will issue either an approval notice, a notice of intent to deny, a request for evidence or a notice of investigation for fraud or misrepresentation. This service is available from July 30, 2001. Employers may request Premium Processing by filing a completed Form I-907, Request for Premium Processing Service.

24. What status will be assigned to H-1B workers who are laid-off?

If you are laid-off or have resigned from your current employer, you will lose your status immediately. It is advisable to leave the U.S. as soon as possible to avoid legal issues. You will not be able to change your status to any other visa because you have lost your valid visa status.

25. Can I transfer my H-1B visa to another company?

You may apply for an H1B transfer to another company. For this you need a valid employment in the U.S. Also you have to prove that you have recent pay stubs (at least 60 days old) and last year W2 forms (if applicable). If you do not have recent pay slips, then you may need to explain the reasons to USCIS. (Unpaid vacation or long sick leave approval letters from your current employer may be considered.) As per law, the petitions that were filed after the last date of employment are not eligible for change of status or change of employment because the applicant becomes out of status when the applicant loses the job. The laid off H-1B worker will be considered out of status even though he has valid H-1B visa in his passport or valid I-94 card.

26. I am still the employee of my company, but without pay, what is my status?

As per the law, you should get paid from day one of your U.S. employment. You cannot live in the U.S. without a salary unless you are on unpaid vacation or sick leave. Your status is legal and valid, but if you are not able to find another employment quickly, it is advisable to leave the U.S. If your employer refused to pay your salary, you can complain to the nearest USCIS office or Department of labor (DOL).

27. I’m qualified as an MBA and I wish to work as a computer professional in a company that pays $50,000 annually, will I be considered as an ‘exempt H-1B employee’?

No, you are not an exempt H-1B employee. Your Master’s degree must be ‘in a specialty related to the intended employment,’ which means that your degree must be generally accepted in the industry or occupation as an appropriate or necessary credential or skill for the job. Since an MBA is not generally considered to be a degree necessary for computer programming, it does not meet the higher degree exemption clause.

28. I’m not qualified with a Master’s Degree. But I can show that my work experience is equivalent to the knowledge and background of a Master’s Degree holder. Do I qualify as an ‘exempt H-1B worker’?

No, you do not qualify as an exempt H-1B worker. The equivalence to the degree may not be established through work experience. You must have been awarded a Master’s degree or higher in a field related to the intended area of employment.

29. Can I reenter the U.S. with the same H-1B visa and join another company?

Yes, you may enter the U.S. with an H-1B visa from a different employer to join a new employer, but only if the new employer has filed an H-1B petition on your behalf.

30. What if there is a change in my working conditions while I’m on H-1B status?

As long as you continue to provide H-1B services to a U.S. employer, most changes will not affect your H-1B status. You may change H-1B employers without affecting status, but your new H-1B employer must file a new Form I-129, Petition for Nonimmigrant Worker, before you start working for him. The merger or sale of your H-1B employer’s business will not affect your status in many instances. However, if the change means that you are working in a capacity other than the specialty occupation for which your employer petitioned, it is a status violation.

31. Are there any travel restrictions on H1B visas?

No, there are no travel restrictions on H-1B visa. You may travel outside the U.S. and reenter as many times during the validity period of the H visa and approved petition.

32. Can I intend to immigrate permanently to the U.S. when on H-1B visa?

Yes, you may apply for Adjustment of Status while on H-1B visa. You may be the beneficiary of an immigrant visa petition, or take other steps toward Lawful Permanent Resident status without affecting H-1B status. This is known as ‘dual intent’ in the immigration law. During the time your application for LPR status is pending, you may travel on your H-1B visa rather than obtaining Advance Parole or requesting other advance permission from USCIS to return to the U.S.

33. How does AC21 affect the H-1B cap?

Section 214(g) of the Immigration and Nationality Act sets an annual limit on the number of foreign nationals that can receive H-1B status in a fiscal year. For FY2000 the limit was set at 115,000. AC21 increases the annual limit to 195,000 for 2001, 2002 and 2003. After that date the cap reverts back to 65,000.

34. Are there new exemptions to the H-1B cap?

Yes, in addition to increasing the cap, AC21 exempts H-1B workers who are employed by or have an offer of employment from:

• Institutions of higher education

• Related or affiliated nonprofit entity

• Nonprofit or government research organization

Note: AC21 also specifies that H-1B worker be counted against the cap if the worker transfers from an ‘exempt’ employer to an employer that does not have an exemption. In addition, the FY 2001 cap does not include H-1B petitions filed after USCIS reached the FY 2000 cap on March 22, 2000 but before September 1, 2000. USCIS estimates that approximately 30,000 petitions were filed during that time frame.

35. When did the law come into effect?

Almost all of the provisions of AC21 and the related legislation came into effect immediately upon enactment. The law was officially enacted on October 18, 2000. The sole exception is the increase in H-1B petitioner fee from $500 to $1000, which takes effect on December 17, 60 days after enactment.

36. Are there any new filing exemptions?

Yes, an amended H-1B petition is no longer required when the petitioning employer undergoes a corporate restructuring, including but not limited to a merger, acquisition or consolidation, where the new corporate entity succeeds to the interest and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner.

37. Who are eligible to use the H-1B ‘portability’ provisions?

The portability provisions allow a nonimmigrant foreign national previously issued H-1B visa or otherwise accorded H-1B status to begin working for a new H-1B employer as soon as the new employer files H-1B petition for the foreign national. Previously, foreign nationals in this situation had to await USCIS approval before commencing the new H-1B employment. These provisions apply to H-1B petitions filed ‘before, on, or after’ the date of enactment, so all foreign nationals who meet this definition can begin using the portability provisions.

38. Are there any other limitations on the ‘portability’ provisions?

A foreign national must have been lawfully admitted into the U.S. The new employer must have filed a ‘non-frivolous’ petition while the foreign national was in a period of stay authorized by the Attorney General. A non-frivolous petition is one that has some basis in law or fact. USCIS plans to further define this in its implementing regulations. Subsequent to such lawful admission, the foreign national must not have been employed without authorization.

39. How will employers who hire H-1B foreign nationals using the portability provisions comply with their I-9 requirements?

Current regulations, 8 C.F.R. 274A.12(b)(20), authorize employment with the existing employer after a request for extension of H-1B status is filed. The foreign national in this case is employment authorized but the I-9 Form, Employment Eligibility Verification, contains no provision for this authorization. Employers should follow the documentation procedures they currently use for an extension of this sort. Typically, this could involve attaching a copy of the receipt notice for the filed petition along with a copy of the foreign national’s I-94 to the I-9 kept on file.

What if I remain in the U.S. illegally?

If you remain illegally for more than six months, you will be barred from the U.S. for three years. If you stay illegally for more than a year, you will be barred for 10 years.

What’s the easiest way to get a work visa?

If you have a college degree or higher and have been offered a job with a U.S. company that will sponsor you, you can obtain an H-1B visa. It usually takes around 30 days to get an H-1B visa, which is valid for one 1-3 years and renewable. Because it’s valid only for work with your sponsor, you’ll have to obtain a new H-1B visa to change jobs.

What is the difference between a nonimmigrant visa and an immigrant visa?

A. Nonimmigrant visas: Foreign nationals can enter the US temporarily as tourists (B-2), business visitors (B-1), students (F-1, M-1), workers (H-1B, L-1, etc.) or for a variety of other reasons. These temporary visas are known as nonimmigrant visas and are issued at US embassies and consulates abroad. Officers at the US embassy or consulate abroad must be convinced that the visa applicant will not remain in the US after expiration of the authorized stay. The visa applicant must demonstrate that he/she intends to depart the US within the prescribed period of time. While some nonimmigrant visa categories are subject to annual quotas (i.e. H-1B), most are unrestricted in number. Nonimmigrant visas can usually be obtained rather quickly. Visas may be valid for one or more entries into the US. However, a visa does not guarantee entry into the US. The immigration officer at the US port of entry makes the final determination.

B. Immigrant visas (aka Green cards) grant the holder the right to reside and work in the US permanently. Holders of these visas are referred to as lawful permanent residents. They are obtained either in the US or abroad at a US Embassy or Consulate. Green cards are available mostly to those individuals who have immediate family members in the US or job skills needed by a US employer. Additionally, a number of green cards each year are granted to investors, refugees, highly educated individuals and DV Lottery winners. The number of green cards issued each year is subject to an annual quota on each category. The speed with which one obtains a green card depends upon the category in which one qualifies.

What is a labor certification?

The first step in obtaining permanent resident status through employment is to show the U.S. Department of Labor that there are no qualified American workers available to take the specific job that has been offered. Applicants apply for green cards under preference categories and are subject to country-by-country quotas. The date on which the employer files the labor certification papers is called the priority date. The priority date marks the legally recognized moment when the waiting period for a green card starts to elapse. The employer files the forms, and the local Department of Labor office sends back instructions on how to advertise for the job. If no qualified applicants arise, the labor certification will be approved and the second step can begin. In some states, the labor certification process can take several years.

The following are the preference categories for employment-based immigration:

First Preference: Priority workers. They require no labor certification.

Second Preference: Members of the professions holding an advanced degree or exceptional ability; if their work falls under the “national interest” requirement, then the labor certification and job offer requirement can be waived;

Third Preference: Skilled workers or those capable of performing work requiring at least two years experience or training for which qualified workers are not available in the United States, professionals with baccalaureate degrees but not advanced degrees and other workers such as unskilled laborers not of a temporary or seasonal nature.

What are the different categories for temporary work visas?

H-1B Specialty Occupations H-1B visas are the most common route to work in the United States for most professional foreign workers. To obtain an H-1B visa you need a job offer from a U.S. employer, where the position requires a minimum four-year baccalaureate degree, and the applicant has the relevant education and/or work experience to fulfill the requirement. Additionally, the employer must pay the prevailing wage in that specific area for that specific position. Specialty occupations in this category are: information technology professionals, physicians who graduated from U.S. medical schools and passed parts 1 and 2 of the USMLE, physicians who graduated from foreign medical schools and passed all three parts of the USMLE, registered nurses with state RN licenses, journalists, accountants, researchers and scientists.

Exchange visitors (J-1): The Department of State (formerly USIA) grants numerous educational institutions and organizations the right to sponsor persons as exchange visitors on the J-1 visa program. J-1 visa holders are restricted to working, studying or participating in the specific exchange programs for which the visa has been approved. Persons with skills listed on the USIA’s exchange visitors skills list, or graduate medical training requires that the J-1 visa holder comply with a two year foreign residency requirement (INA sec. 212(e)) after the expiration of his/her stay.

Treaty Traders (E-1) and Treaty Investors (E-2): Owners and key employees of businesses that conduct a substantial volume of trade between the United States and the home country are treaty traders (E-1) and a treaty investor (E-2) has invested in the United States and jobs created for U.S. workers. To qualify for an E-2, the home country must have a treaty with the United States.

Intracompany Transferees (L-1): One qualifies for an L-1 visa if you have been employed outside the United States as a manager, executive (L-1A) or person with specialized knowledge (L-1B) for at least one of the last three years, and you are transferred to the United States to be employed in a similar position. The U.S. company to which you are transferring must be a branch, subsidiary, affiliate or joint venture partner of the non-U.S. company. The non-U.S. company must remain in operation while you have the L-1 visa. Said company may be either a foreign division of an American-based company or it may have originated outside the United States. Any form of business is adequate, including but not limited to corporations, LLCs, LLPs, partnerships, joint ventures and sole proprietorships. There are no quota limits on L-1 visas.

Religious Workers (R-1): To qualify for an R-1 visa, you must be a member of a religious denomination for at least 2 years and have a job offer in the United States to work for an affiliate of that same religious denomination. R-1 visas are for either clergy or lay religious workers. Successful applicants need not have worked for the religious organization but must have been members of it for at least two years.

Other temporary work visa categories include: temporary trainees (H-3), persons of extraordinary ability in the arts, sciences, education, business or sports (O-1/2) and athletes and entertainers (P).

How can you obtain a green card without going through the labor certification process?

If you qualify for (EB-1) status, you may not need to go through the labor certification process.

EB-1 subcategories are:

a. persons of extraordinary ability in the sciences, arts, education, business or athletics as demonstrated by national or international acclaim. The individual should continue the work in the field and the entry should substantially benefit the United States.

b. outstanding professors and researchers. This requires that the individual be internationally recognized in an academic area and possess at least three years of academic research or teaching experience and have a tenure or tenure track position at a university or an institute of higher education.

c. multinational executive or manager. This requires that the individual be employed abroad in that capacity during at least one of the three years preceding the application for admission to the United States as a priority worker. He/she must enter the United States to be employed as an executive or manager for the same firm, corporation or legal entity or a subsidiary or affiliate of the entity that employed him/her abroad. Most L-1A visa holders qualify for this category after one year of work in the United States.

What is a national interest waiver (NIW)?

The employment based second preference category (EB-2) includes members of the professions who hold advanced degrees and individuals of exceptional ability in the arts, sciences or business. Although this category requires a job offer and labor certification, INS may waive this requirement if the work of the alien is of national interest.

Statements by experts concerning the importance of their work are considered with past accomplishments and the need for their particular type of skill in the United States. This standard has not been well defined by the INS. Successful cases will improve the U.S. economy, working conditions, the education system, health care, housing or the environment.

How can an individual obtain permanent residence through marriage to a U.S. citizen?

If the U.S. citizen resides in the United States, filing an application to the INS office having jurisdiction over the petitioners residence is the first step. Usually, this is a one-step filing, meaning that one applies for petition approval, adjustment of status, and work authorization all at the same time. The INS will issue an employment authorization document (EAD) within 90 days of applying. The INS will then arrange a marriage interview for the couple. This may take two months to two years, depending on the INS jurisdiction. The INS will examine documents and question the applicants to determine the bona fides of the marriage. You should be prepared to produce wedding photographs, tax returns, joint bills, joint leases or deeds, joint bank accounts and/or insurance documents naming each spouse as a beneficiary. If the immigration officer suspects that the marriage was entered into for immigration purposes, the INS may investigate the candidate’s home and place of work. If the marriage is less than two years old at the time of interview, the green card will be conditional and expire in two years. The applicant and spouse file papers to have the conditions removed within the 90 day period prior to the expiration of the green card and return for another interview to have the conditions removed.

If the US citizen resides abroad, the paperwork must be submitted and processed at the appropriate U.S. consulate. The process is nearly the same but the waiting time is less–from two to six months.

How can an individual become a permanent resident through a relative?

There are five ways to become a permanent resident through a relative.

1. Immediate relatives of U.S. citizens. There are no quotas and no waiting for immediate relatives of U.S. citizens. Immediate relatives of U.S. citizens are spouses, unmarried children under 21, and parents of U.S. citizens.

2. First preference. Unmarried sons and daughters of U.S. citizens (23,400 visas per year plus unused visas from fourth preference)

3. Second preference. Spouses and unmarried children of U.S. citizens and unmarried sons and daughters of green card holders who are at least 21. (114,000 visas per year plus unused visas from the first preference)

4. Third preference. Married sons and daughters of U.S. citizens (923,400 visas per year and unused visas from the first and second preferences)

5. Fourth Preference.Brothers and sisters of U.S. citizens (65,000 visas per year plus unused visas from the first, second and third preferences).

Family sponsored immigration has an overall quota of 480,000 visas per year.

How can an alien become a U.S. citizen?

There are four ways to become a U.S. citizen:

1. Naturalization petition.

To qualify for this process you must:

(i) be a lawful permanent resident. (ii) be 18 years or older. (iii) be a permanent resident for five years. (If a person obtained permanent residence through marriage to a U.S. citizen, they may be eligible for naturalization in three years if the couple has been married for 3 years, if the spouse was a citizen during that entire period, and if the couple are still living in marital unity.) (iv) have resided for at least three months in the state where the petition was filed. (v) be physically present in the United States for at least one half of the five years (or one half of three if spouse is a citizen), with no absences longer than 1 year. (vi) have resided continuously within the United States from the date the petition was filed to the time of admission to citizenship. (vii) be a person of good moral character for the five years. (viii)have an elementary level of reading and writing English. Exceptions to this rule exist for persons over fifty, in the US for 20 years or more as a permanent resident; and persons over 55 , in the US for 15 years as a permanent resident.(ix) have a basic knowledge of the fundamentals of U.S. government and history. This requirement can be waived for people over 65 and have been permanent resident for 20 years.

2. By birth in the United States. Under the 14th Amendment, all persons born in the United States are citizens regardless of the status of their parents, who may be citizens, green card holders, or illegal aliens.

3. By acquisition at birth. A child born outside the United States where one or both parents are U.S. citizens may acquire U.S. citizenship at birth.

4. By derivation through naturalization of parents. A child born outside the United States may become a citizen by virtue of the parents’ naturalization.

What is political asylum?

The INS grants aliens political asylum in the United States based upon fear of persecution in the home country due to race, religion, nationality, political opinion or membership in a particular social group. Economical suffering is not considered a reason for asylum. A person must request political asylum within one year of arriving in the United States, unless there are exceptional circumstances. If political asylum is granted, the applicant is allowed to remain in the United States and eventually obtain permanent residence.

What is the green card lottery?

The diversity visa lottery (DV) is more commonly known as the green card lottery. The Immigration Act of 1990 created a new green card category to benefit people from countries that have low immigration to the United States. The goal of the program is to diversify the pool of immigrants entering the United States. The DV program grants 55,000 immigrant visas each year by random drawing. The visas are divided among geographic regions. A greater number of visas will go to those regions that have lower immigration rates and no visas may be issued to countries that have sent more than 50,000 immigrants to the United States during the previous five years. DV applicants must have a high school education or its equivalent, or within five years have two years of work experience in an occupation that requires at least two years of training or experience. The DV registration period is usually between early October and early November of each year and successful registrants are usually notified between April and July of each year. Registrations submitted one year are not held over until the next year.