H-1B visa FAQ
By Steve Moore [January 6th, 2012]
Note: The Bureau of Citizenship and Immigration Services (BCIS) is now called the U.S. Citizenship and Immigration Services (USCIS).
Can I apply to the Bureau of Citizenship and Immigration Services (BCIS) for this visa?
No. A United States employer who has a professional position signs the documents which are usually prepared by an attorney specializing in Immigration Law. The employer is called the Petitioner. You, the future employee, are called the Alien Beneficiary.
Can any job qualify for an H-1B visa?
No. Only professional positions will qualify for an H-1B visa.
If I have an H-1B visa sponsored from an employer, can I quit the job and go to another job and still be in a legal immigration status?
No. You can only work lawfully for a second employer if your second employer has already filed for and received an H-1B visa approval for you to work in a qualifying position for the second employer.
Is it lawful if I have an H-1B visa for me to work at other non-professional jobs at the same time?
No. The H-1B visa generally limits your lawful employment to the employer who originally sponsored you in the specific position for which you were petitioned (some other part-time work may be permitted in some circumstances).
Can my wife and single children under 21 get an H-1B visa with me?
Yes. They are given H-4 Dependent visas. However, although they do not have BCIS work authorizations, they may enroll lawfully in school.
What procedures are involved in filing for an H-1B petition?
First, the Immigration Attorney must research the correct position title in compliance with the Department of Labor (DOL) and then ascertain the "Prevailing Wage" for that occupation in that geographic area (documents submitted twice to the DOL). Next, the Attorney prepares a document for the employer to post internally. The attorney then prepares documents for the employer to sign which will be submitted to a BCIS regional office, along with the earlier submitted documents sent to the DOL.
How long will it take to obtain an H-1B visa?
It varies nationwide (between 6 weeks to 3 months).
Who pays the attorney fees?
This is negotiated between the alien and the employer.
Will the H-1B visa ever give me a "Green Card"?
No. It is a non-immigrant visa. But you may apply separately for a Green Card.
What happens if I am working on an H-1B visa and I am fired or the employer goes bankrupt?
Your status terminates. See the BCIS or an Immigration Attorney immediately to ascertain if it is possible to change your visa status without going "out" of a lawful immigration status and making yourself potentially deportable.
Does the H-1B visa function as a BCIS Work Authorization?
The H-1B is limited to no specific work/employers. They are authorized on Form I-129, which is filed by the employer to allow a foreign national professional or party to be accorded H-1B status to fill that specific job. Should the alien wish to work for another "professional" employer, another H-1B visa must first be obtained to authorize such employment. The requirement for obtaining another H-1B visa may be "waived" when an alien intends to work for only a portion of the day, or intermittently, or part-time in a non-specialty occupation. Under no circumstances will an H-1B be issued to a "non-professional" employee.
What is the definition of a "professional"?
The Immigration and Nationality Act, as variously amended, contains a non-exclusive list of professional/specialty occupations.
What are the educational requirements for receiving an H-1B?
For professionals, or those in specialty occupations, the usual "minimum" requirement is a BA/BS degree at an accredited college or university obtained in the United States or abroad. Any foreign education that is post secondary must be evaluated by a credential evaluation service that is deemed reputable by the Bureau of Citizenship and Immigration Services (BCIS). BCIS also insists on seeing original or attorney certified copies of foreign/US diplomas and transcripts. All transcripts and diplomas not in English must be "related" and relevant to the professional job for which the US employer is petitioning the BCIS.
What does the H-1B procedure now consist of?
When an employer offers a professional position to an alien who is not already a Lawful Permanent Resident or has a BCIS work authorization normally the alien or the employer does the following:
- Ascertain if the foreign national is deemed to be "qualified" for the position by BCIS criteria (which can differ substantially from the realities/business practices in the United States). In other words, BCIS may not allow an alien to receive an H-1B if in that agency's view the foreign national's education/training does not match their predetermined formula for filling the position. The decision making power to lawfully hire a specific alien for a specific job is ultimately in the hands of BCIS and not the petitioning US employer. The BCIS can lawfully ignore the mere fact that a US employer may deem the alien to be a highly qualified and desirable employee.
- Salary - The alien must be offered at least the "prevailing wage" for the position. The immigration attorney working in conjunction with the local or state employment office and various professional organizations will ascertain the prevailing wage. This task is completed after the attorney has determined which job description/title is appropriate for the job. This determination is made by the US employer which must verify that the job requirements fit into the Department of Labor which maintains (theoretically) its own wage surveys for all positions described in an enormous two-volume book published by the Department of Labor describing literally hundreds of thousands of positions.
Can a foreign national hold multiple H-1B visas if her or she wishes to work on a part-time basis in several jobs?
Yes. However, it is not lawful to begin looking for a second, third, or fourth employer until the first H-1B has been approved.
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