H-1B Visas- Specialty Workers (Persons in a Specialty Occupation)

 

Eligibility: The following individuals or entities will be eligible for an H-1B Visa.

  • Individuals coming temporarily to the U.S.
  • Foreign professionals with a specialized skill such as scientists, engineers, programmers, management consultants, journalists, research analysts, etc.
  • Foreign nationals entering the U.S. to perform exceptional services related to cooperative research and development projects run by the U.S. Department of Defense (DOD).
  • Professional nurses entering the U.S. to perform complicated job duties or to oversee nursing operations.
  • Fashion models with distinguished merit and ability.
  • U.S. companies bringing in qualified individuals to perform specialized skills jobs.

 

If there is an approval of labor certification or a filing of an immigrant visa petition it will not prevent the granting of an H-1B petition or extension.

An H-1B visa does not require that the applicant maintain a foreign residence.

Labor Condition Application (LCA) Requirement: This applies to all H-1Bs. The applicant must obtain a certification from the DOL that he has filed an LCA in his specialty area. If the applicant is involved in a project run by the DOD then he does not have to file an LCA.

Payment of Fees By Employer:

  • Fees To Be Paid To The DHS: An employer must three sets of fees to the government. Standard petition fees for an I-129 petition must be paid and if the employee is currently abroad then additional fees must be paid at the consulate. Second, the employer must pay a fee of $1,500 but is exempt if he/she is an employer who does not have more than 25 full-time employees of equal skill and then only has to pay half $750. Third, the employer must pay $500 to the government for fraud prevention and detection fee.
  • Payment of Salary and Costs to Employee:
    • Payment of Salary- The employer must begin paying the employee-stated wage within 30 days of entry or within 60 days of the C/S application.
    • Transportation Home- If an employer relieves an employee; the employer must pay the reasonable costs for the employee to travel home.

     

Cap of 65,000 H-1B Visas Per Year- H-1B Visas are limited to 65,000 a year minus the Free Trade Visas for Chile and Singapore which results in 58,200 H-1B Visas.

 

H-1B1 Visas- Chileans and Singaporeans In A Specialty Occupation:

Eligibility: The following individuals or entities will be eligible for an H-1B1 Visa.

  • Professionals from Chile and Singapore interested in temporary employment in specialty occupations.
  • Businesspersons with no baccalaureate degree or the equivalent but who will engage in professions for Chileans only: Agricultural Managers and Physical Therapists. Professions for both Chileans and Singaporeans: Disaster Relief Claims Adjusters.
  • Nationals of Singapore and Chile, particularly Management Consultants who have a baccalaureate degree in a field other than their specialty area.
  • U.S. companies who bring in the expertise of qualified professionals from Chile and Singapore for jobs requiring a bachelor’s degree and specialized skills.

DHS Petition: No DHS petition is required, the visa may be obtained by the applicant directly at the U.S. consulate. There must be proof provided of both an LCA and an offer of employment in writing.

Licensure Requirement: The applicant must comply with the licensure requirement once admitted if his profession requires a state license.

Labor Condition Attestation: Labor condition attestation on Form 9035 or 9035E must be filed with the DOL and noted as H-1B1 for Chile or H-1B1 for Singapore.

Length of Admission: Admission will be granted for one year. Extensions may be granted in one-year increments. After every second extension a new LCA is required. Extension of Status and Change of Status may both be granted through the Nebraska Service Center. Spouses and dependant children will be given H-4s.

The H-1B1 visa is subject to the INA §214(b) and will need proof that the H-1B1 applicant does not plan to abandon his foreign residence and proof of his intention to become an LPR.

Change of Status: I-129 application needs be accompanied by: 1. A letter from the U.S. employer stating the activity the applicant will participate in, the expected duration of time in the U.S., and the arrangements for payment; 2. Evidence that education requirements are met by the applicant; and 3. A labor attestation.

Cap: Reduces the H-1B cap depending on the extent used: 1,400 for Chile and 5,400 for Singapore.

 

H-1C Visas- Registered Nurses:

Eligibility: The following persons or entities are eligible for an H-1C visa.

  • Foreign nurses with a license to practice nursing without restrictions.
  • An individual who has previously performed services at a facility listed in INA §212(m)(6), for which there is an unexpired attestation on file.
  • Hospitals and medical facilities listed in the H-1C Nursing Relief for Disadvantaged Areas Act of 1999 who are hiring registered nurses from abroad.

 

H-2A Visas- Agricultural Workers:

Eligibility:  The following individuals or entities will be eligible for an H-2A visa.

  • Foreign agricultural workers with job offers from U.S. companies.
  • U.S. companies hiring foreign workers to perform agricultural labor or services temporarily, such as a seasonal time period.

Under H-2A there is a 50% rule stating that U.S. employers must hire the qualified U.S. farm workers who apply for the job until 50% of the contract period has lapsed.

 

H-2B Visas- Seasonal Workers:

Eligibility: The following individuals or entities will be eligible for an H-2B visa.

  • Athletes, artists, or trainers from abroad with a job offer from a U.S. employer.
  • Skilled workers in a trade and crafts to perform tasks that U.S. workers are not available to perform.
  • U.S. companies hiring foreign nationals for temporary work because no U.S. workers are available.

Requirements:

  • Temporary labor certification must be obtained showing: 1. No USC/LPR workers are available for the job; 2. Employment of aliens would not adversely affect wage rate and working conditions of workers employed in the same type of position in the U.S.
  • Must be shown that the request for labor is a one-time occurrence, a seasonal need, a peak load need or an intermittent need.
  • It is permitted for multiple beneficiaries to be requested as long as they will be doing the same kind of work under the same conditions.
  • Multiple Locations: The application must include an itinerary of locations and the dates to be spent at each location. Also, an application must be filed with State Workforce Agency (SWA) where employment will begin.
  • Must be proven that there is no labor dispute at the workplace.
  • The position must be temporary. To make this determination the Service will look to the nature of the employer’s need rather than the time period of the need.

Procedure:

  • Labor certification approval must be obtained. For H-2Bs there is a 60-120 day notice period.
  • Approval must be submitted with the I-129 to the USCIS.
  • “Emergent Situations” – in certain situations where all the beneficiaries are not known, multiple petitions may be filed for the beneficiaries following the initial filing. To grant this emergent situations exception the Service requires evidence from the employer, clearly describing the business reasons as to why the beneficiaries are presently unnamed. There is a fraud prevention fee of $150.
  • Substitution of Beneficiaries: USCIS can substitute H-2B beneficiaries if the petition was approved for unnamed beneficiaries, the approval is for a group, or if the job does not require education, experience or teaching.
  • Transportation Home: If the H-2B is dismissed before the end of the admission period the employer is responsible for paying for the reasonable costs of the alien’s trip home.

Admission and Extension:

  • Admission is given for the period of time on the labor certificate but not more than one year.
  • Extensions are not longer than 12 months and maximum of 3 years.
  • H-2B is capped at 66,000 visas per year. Spouses and children are not included in the cap. A returning worker will not be included in this cap if the worker was counted in one of the past 3 years before the approved start date.

Administrative Penalties:

  • Upon a significant failure to meet any of the conditions of the H-2B petition or a known misrepresentation of a material fact, the DHS can impose, in addition to all the other penalties and only following a hearing, civil monetary penalties of $10,000 per violation and can refuse to grant petitions for 1 to 5 years. The most severe penalties will be reserved for “willful” failures to cooperate with the requirements listed.

 

 

J-1 Visas- Exchange Visitors:

 Eligibility:    The following individuals or entities will be eligible for a J-1 Visa.

  • Foreign students participating in exchange programs to promote the sharing of knowledge and skills in arts, sciences and education.
  • Professors, research scholars, bona fide trainees, short-term scholars, nonacademic specialists, foreign physicians, government visitors, international visitors, and summer students in a travel or work program.
  • Individual has sufficient funds and is fluent in English.

Consulates are permitted to issue the visa at any time provided that the DS-2019 is valid. An exchange visitor may not enter the U.S. more than 30 days prior to the reported start date of an exchange visitor program.

Au Pair Program:

  • Allows foreign youths to be placed with American host families who are looking for childcare. The DOS has expanded this program to include all nations except those lacking diplomatic relations with the U.S.

B-1 in Lieu of J-1:

  • B-1 is applicable if visitors to the U.S. can have their travel funded by the U.S. government but do not fit within the J-1 category.

Two-Year Foreign Residence Requirement:

  • Some J visa holders are subject to the requirement that they return home after they complete their U.S. training before they are eligible to adjust their status, apply for an immigrant visa or apply for an H or L visa, or change their status inside the U.S.
  • J visa holders who are subject to a 2-year foreign residence requirement will be:
    • Individuals who were funded in part or completely by an agency of the U.S. or the government of his home country.
    • Individuals who were involved in an area that was on the DOS skills list.
    • Individuals who entered the U.S. or obtained their J status after January 10, 1977.

Waiver of 2-Year Requirement:

  • Procedure: USCIS may grant a waiver following a favorable recommendation being made by the DOS to the USCIS. The DOS procedure to obtain the waiver is a four-part process as follows:
  1. The applicant must submit a Data Sheet to the Department of State/ Waiver Review Division with two stamped self-addressed envelopes and a fee.
  2. The DOS will send a case number and instructions for waiver application to the applicant. The instruction sheet varies depending on the nature of the waiver requested on the Data Sheet.
  3. Under INA §212(e), four different kinds of J-1 waivers exist. All four start with the filing of a Data Sheet. For two of the categories (persecution and hardship) the next step will be the filing of Form I-612 with the USCIS Service Center that has jurisdiction over the applicant’s residence location. There are two other categories, Interested Government Agency and No Objection, and they do not require a filing with the USCIS. The next step for these two categories is an application to the agency or the foreign government.
  4. The DOS reviews the application and forwards its recommendation to the USCIS with a copy to the applicant and the J-1 sponsor.
  • Hardship and Persecution Cases: Waiver application is made to USCIS on Form I-612.
  • If the USCIS denies a request before the referral to the DOS an appeal may be made to the AAO.
  • USCIS Form I-612: This is used only for hardship and persecution waivers. The remaining two waivers, interested government agency and no objection do not begin with a filing to the USCIS and do not use the Form I-612 at any point in the process.
  • Basis For Waiver:
    • Possible Persecution: Applies to those who might be subject to persecution on the basis of race, political opinion or religion in their home country.
    • Exceptional Hardship: Applicable in cases where removal from the U.S. would cause great hardship on USC/LPR spouse or child.
    • No Objection Waiver: Applicable if the J country gives a no objection statement in reference to the applicant’s decision not to return home. This will not be available to foreign medical graduates unless they entered the U.S. as a J to observe, do research, teach or consult. Application should be made through the country’s embassy in the U.S.
    • Request by U.S. Agency: Set in motion by a U.S. agency other than the DOS having an interest in the case. It must be shown that the granting of the waiver will be in the interest of the public, and that compliance with a 2-year return would be in conflict with a program or activity, which is of official interest to the agency.
    • International Medical Graduate: A Foreign Medical Graduate (FMG) is eligible to obtain a waiver via a recommendation given by an interested federal or state agency with an interest in furthering the physician’s employment in a medically undeserved area.