The Law Offices of Vaughan de Kriby speicalizes in EB-5 Investment Green Card only. We're happy to share the information below to help you with your H-1 decisions for your career or your company.
The H-1B was created for those with a "Specialty Occupation"- a job requiring special skills or knowledge and at least a Bachelor's degree level of education. The idea behind this visa is to allow an American employer to sponsor a foreign worker. This foreign worker can then legally enter the U.S., or if already in the U.S. can change their visa status to that of an H-1B and work as a non-immigrant worker for a temporary period of time. While on an H-1B visa, an individual can then prepare and file an employment based green card petition for immigrant purposes if so inclined and if qualified.
The H-1B is a Popular Immigration Option
The primary reason that the H1-B is so popular is that it is one of the few options for someone who simply wants to find a job with a U.S. employer and start working based on their bachelor's degree level of education alone. Unlike other visa options discussed in this website, the H-1B does not require one to start a business, invest in one, or to have worked for a foreign parent or subsidiary for some period of time.
The H-1B is Meant for Those with the Proper Educational or Working Background
What this boils down to is that the applicant must have at least a Bachelor's degree level of education in a field that is directly related to the job being offered.
An applicant can also qualify by having a Bachelor's degree level of work experience in the relevant field. For H-1B purposes, the government considers three years of work experience as equivalent to one year of University or college education. This means that the education requirement can be met with 12 or more years of work, so long as it is in a job that is similar to the one being offered by the sponsoring employer. When working experience or a combination of education and working experience is used to satisfy the H-1B requirements, a professional evaluation is needed pursuant to immigration regulations. Also, if a foreign degree is being used to show that a worker has the proper educational background then a professional degree evaluation will also be expected.
To qualify, the position must meet at least one of the following criteria:
- A Bachelor's degree or higher degree is normally the minimum requirement for entry into the particular position.
- The degree requirement is common to the industry in parallel positions among similar organizations.
- The particular employer normally requires a Bachelor's degree or its equivalent for the position.
- The specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a Bachelor's or higher degree.
Further, a qualifying Petitioner must be a United States employer in the United States which:
- Engages a person to work within the United States;
- Has an employer-employee relationship with respect to employees as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee; and
- Has an Internal Revenue Service Tax identification number.
Further, an H-1B petition may not be filed or approved earlier than six months before the date of actual need for the beneficiary's services or training. An H-1B may not be approved for more than 3 years at a time either, however extensions are allowed for up to a total stay of 6 years. Extensions may be obtained beyond the 6 year limit if a labor certification, an I-140, or employment-based adjustment application was filed at least 365 days prior to the expiration of the applicants current H-1B. If so, the H-1B status shall then be extended in one-year increments. Three year extensions beyond the sixth year are available if a person has an approved I-140 (one of the employment based green card steps) and the beneficiaries of such a first-, second-, or third-preference employment-based petition is unable to complete the green card process due to per country visa limitations.