H-1B: Temporary Work Permit Visa Lawyers

A temporary visa is also referred to as a nonimmigrant visa. A temporary visa is a type of visa issued to those seeking to visit the U.S. for a limited amount of time. Immigrants who are applying for nonimmigrant status must demonstrate that they have no intention to stay or live permanently in the United States.

Nonimmigrant visa categories cover nonimmigrant workers, as well as nonimmigrant exchange students. These two categories alone cover the largest number of nonimmigrant visas issued each year. Generally speaking, nonimmigrant workers or exchange students must be petitioned by a sponsor who will assist them in obtaining their temporary visa. A sponsor for a nonimmigrant worker would most likely be their employer. For nonimmigrant students, their sponsor is generally the educational institution where they are receiving their education.

Some examples of other nonimmigrant visas categories include:

• Representatives of foreign governments;
• Representatives of the foreign press;
• Specific types of temporary religious workers;
• For Mexico and Canada only, some professionals under North American Free Trade Agreement (“NAFTA”) treaty provisions;
• Investors and traders as designated under NAFTA treaty provisions;
• Immigrants receiving training that is not available in their home country;
• Immigrants who will be providing information to federal and state authorities for criminal investigation purposes; and
• Internationally recognized entertainers, athletes, and their support staff.

What unites all of these categories is that the nonimmigrant is visiting the U.S. for a specific purpose, and a set amount of time. Those who wish to visit the United States for leisure, or to immigrate permanently, must apply under different immigration categories.

An H-1B visa is a work permit allowing a nonimmigrant to work for an employer in the United States. This is on a temporary basis, and occurs in a specialty occupation. A person may hold an H-1B visa for a maximum of six years. These six years can be issued in increments of three years at a time; so, either six years at once, or three years and then another three years later on. However, there are specific conditions in which an employee may hold a H-1B visa for a period lasting beyond the six-year period.

H-1B visas are limited in quantity. There are approximately 85,000 H-1B visas distributed per year, and many are restricted to those who have received an advanced degree from a U.S college or university.

What Are the General Requirements For an H-1B Visa? What Is Considered to Be a Speciality Occupation?

In order to obtain a specialty occupation H-1B visa, the employee must possess a bachelor’s degree. Alternatively, they may have comparable and equivalent experience to a bachelor’s degree in their field. This would likely consist of education, training, or experience in the specialty that is equal to the completion of such a degree. The employee could also have recognition of expertise in their specialty through progressively responsible positions directly related to their speciality.

Additionally, the employee must hold an unrestricted state license, registration, or certification authorizing them to fully practice the specialty occupation. Such a license must be issued by the state of planned employment.

The person or company employing an H-1B applicant must acquire a labor condition application (LCA) from the U.S. Department of Labor. This must be obtained prior to filing the H-1B petition with the USCIS.

In terms of applying for an H-1B visa, speciality occupations are defined as those requiring theoretical and practical application of a body of specialized knowledge, and at least a bachelor’s degree or an equivalent. Some examples of what constitutes specialty occupations are:

• Occupations that have a minimum entry requirement of a bachelor’s or higher degree, or its equivalent, as previously discussed;
• Occupations in which the degree requirement for the job is industry specific, or the job is so complex or unique that it can be performed only by an individual that holds that degree; and
• The nature of the specific duties associated with the occupation is considered to be so specialized and complex that the knowledge required to perform the duties is not usually associated with self-training.

The following is broad categorization of occupations generally approved as qualifying for an H-1B visa:

• Accounting and auditing;
• Architects and civil engineers;
• Biologists, Chemists, and other scientists;
• College and university educators;
• Data communication and network administrators, as well as database admin;
• Electrical and electronic engineers;
• Investment banking;
• Industrial and mechanical engineers;
• Physicians and surgeons;
• Primary and secondary school teachers; and
• Therapists.

These are just a few examples, and this is not an inclusive list. There are many other broad fields which may be considered specialty occupations in terms of qualifying for an H-1B visa. More complete information can be found on the USCIS website.

What Else Should I Know About the H-1B Visa?

To reiterate, prior to applying for an H-1B visa, you must have a sponsoring U.S. employer. The employer will submit an application first to the Department of Labor, and then with the United States Citizenship and Immigration Services (“USCIS”). If the employer’s petition with the USCIS is approved you may proceed with applying for your H-1B visa.

Generally speaking, the H-1B is valid for six years, and can be divided into two three-year increments. Depending on specific circumstances, the visa may be extended beyond the six year period. You must file for a visa extension with the United States Citizenship and Immigration Services (USCIS), preferably 45 days before your visa expires.

If you have filed either a Labor Certification application or an I-140 petition 365 days before the six-year limitation, and the LC or I-140 has not been denied, you may extend your status on a yearly basis beyond the six-year limitation.

The following requirements must be met in order for you to become eligible for a visa extension:

• Your admittance into the U.S. with a nonimmigrant visa was lawful;
• Your nonimmigrant visa status is currently valid;
• You did not commit any crimes that would disqualify you for an extension;
• You filed your application for extension before your stay expires; and
• You have a valid passport for the entirety of your stay in the U.S.

Extensions are NOT available for the following visa categories:

• Visa Waiver Program (“VWP”);
• D- Crewman status;
• C- In transit without a visa, or foreign national in transit;
• K- As a fiancé or spouse of a U.S. citizen, or dependent of a fiancé or spouse; and
• S- Informant regarding terrorism or organized crime.

A company who is hiring an H-1B foreign worker has considerable responsibilities. As such, the guidance of an immigration attorney is absolutely encouraged. There are many steps an employer must take in order to legally sponsor and employ an H-1B visa holder. An example of just some of these steps include:

• Determining the actual and prevailing wage for the position;
• Informing workers or their representatives of the intent to hire a foreign worker;
• Completing and submitting a Labor Conditions Application with the Department of Labor (“DOL”); and
• Filing with the USCIS upon DOL certification.

Do I Need an Attorney for an H-1B Visa?

Whether you are a worker looking to obtain your H-1B visa, or an employer wanting to hire an H-1B visa holder, you should consult with an immigration attorney. An experienced and local immigration attorney can help you determine which type of visa you should apply for, and can also ensure you meet any necessary criteria. 

Further, an attorney will also be able to help you file all necessary paperwork with the correct agency, and ensure you comply with any and all deadlines. Finally, should you experience any legal issues, your attorney will also be able to represent you in court, as needed.