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Non-Immigrant Visas: H-1B & H-2B (Business) Visas

Non-Immigrant Visas: H-1B & H-2B (Business) Visas

H-1B Visas

This visa is issued to what the Bureau calls “temporary specialty workers” and are valid for a period of three (3) years. This type of visa may be extended only for another three (3) years. A temporary specialty worker is a person with specialized knowledge, typically acquired through a college education, e.g., accountants, architects, artists, chemists, computer professionals, engineers, librarians, upper-level business managers, pharmacists, and physicists. Other workers without college education are eligible for temporary work visas under the H-2B category. As an H-1B applicant, your education must be related to the job you intend to perform, otherwise, you will be ineligible. Substantial on-the-job experience may also qualify you as a temporary specialty worker, requiring typically three years of specialized training and/or work experience for every year of college you may have needed for the position. Lastly, distinguished fashion models may acquire this type of visa.

Step One: Labor Condition Attestation by Employer

The first step is to obtain a job offer from a U.S. employer who is willing to pay you the prevailing wage in the relevant geographic area. The employer’s first step is to complete a Labor Condition Attestation (“LCA”) with the Department of Labor (DOL), on Form ETA-9035. LCA approval generally arrives from the DOL anytime between 14 days and four months on one of the original ETA-9035 forms originally submitted by the employer. Among other things, the employer is required to disclose on this form the number of foreign workers to be hired for the occupation, the wages to be paid – which must be higher or equal to the prevailing wage – and that the benefits are the same as for U.S. workers. The employer also agrees that it will make each H1-B worker’s attestation and supporting documents, in addition to other documents in connection with hiring foreign workers, publicly available for inspection. The employer is also obligated to begin paying the H1-B employee within 60 days, or sometimes sooner, from when the worker became an H1-B worker, even when, for instance, there is insufficient work or the employee lacks proper licensing.

Step Two: Filing of the Petition – Forms I-129, H Supplement & I-129W

After obtaining approval of the ETA-9035, the employer is required to complete a Form I-129, with H Supplement, I-129W, and submit them with the approved Form ETA-9035 to the local regional service center, along with the filing fee. Petitions are usually approved within four (4) months. The employer may also request expedited processing within 15 days if submitted with an expedited processing fee. In support of your assertion that you are a professional you will need to submit diplomas and transcripts from the schools you attended. If you were educated outside the U.S., it is recommended that you submit a credential evaluation performed by a qualified credential evaluation service. Your employer, on the other hand, will need to submit a written employment agreement or, where you may not have one, you will need to submit a summary of an oral employment agreement. And where the position is not clearly a specialty occupation, e.g.., physician, accountant, etc., your employer will need to submit a description of the job duties, explaining how your knowledge and/or education is essential for the job. In support of the employer’s ability to pay your salary, your employer may also be required to submit tax returns, profit and loss statements, etc. In addition, physicians must pass a USMLE licensing exam, or equivalent, and satisfy state licensing requirements if providing patient care. Your spouse and unmarried children under the age of 21 may apply for H-4 visas in order to accompany you. Any family members who receive this visa, unlike an H1-B visa holder, are prohibited from working while in the U.S.

U.S. or Consular Processing

You are eligible to apply for H1-B status while residing in the U.S. if you did not stay in the U.S. later than the date stamped on your I-94 card when you entered the U.S. (otherwise known as “overstaying” your visa). If, however, you may have overstayed your visa, you will be required to return to your home country and apply for the H1-B visa from your home consulate and wait either three (3) or ten (10) years, depending upon the length of your overstay, in order to apply. If you overstayed your visa in the U.S. for less than 1 year, you will be barred from returning for three (3) years. If you overstayed for more than one year, you will be barred for ten (10) years. These bars apply only to overstays which occurred after April 1, 1997, otherwise, the bars to entry do not apply. Further, a limited exception applies to those who entered on student visas where duration of the status is at issue.

Denials

If the application is denied after you applied at a consulate abroad, you have no right to appeal, but file another application for the visa. If your application is denied by a local U.S. Service Center, you are permitted to appeal and may request a motion to reopen. If you believe that you omitted required documents, or failed to address a particular aspect of your application, you should file a Motion to Reopen, in addition to an appeal, which must be filed within 30 days.

Extensions

You may be able to obtain a three-year extension of your visa. You are limited, however, to a total of six years as an H1-B visa holder. An extension application requires refiling the same forms as you filed to initially obtain the visa, but with less supporting documentation. After receiving an approval of your extension, you will also be required to obtain visa revalidation from the Department of State.

H2-B Visas

H2-B visas are available to persons who intend to perform temporary work, of either a skilled or unskilled nature, who do not fall into the H2-B category, usually because the position does not require a college education. They are valid for no more than 12 months. An H2-B visa application is similar to that for an H1-B visa.

Step One: Employer to Complete Form ETA-750

First, the H2-B visa applicant must have a job offer from a U.S. employer who is willing to petition for your visa. Your potential employer must complete a “Temporary Labor Certification” (Form ETA-750) which requires the employer to demonstrate, among other things, that there are no available qualified American workers to take the job offered and to verify that the job is, in fact, a temporary position. The form is submitted to the local state employment agency within the geographic region of your employer. In that form, the employer must verify that it will be paying the “prevailing wage,” describe the job in detail, and include minimum experience, which ought to include a description of the standard education and experience for the particular job. You should refer to the Department of Labor website for the extent of education and experience usually required for your particular job. The application cannot be filed earlier than 120 days before you are needed for work.

Step Two: Advertising

After the Form ETA-750 has been filed, the employer is required to place an advertisement for the position, usually in the classified section of a newspaper, for three consecutive days, directing any potential applicants to the state labor department. The employer must also post an advertisement at the employer’s place of business for ten consecutive days. The advertisements must each duplicate the job’s education and experience requirements. The advertisement will specify that any applicants should inquire with the state labor department. In turn, the state labor department will refer any candidates wishing to apply to the employer. If the applicants do not meet the job’s minimum requirements, the employer must describe in what way they do not meet the job’s minimum requirements. If, on the other hand, the candidates meet the job’s minimum requirements, the employer will be required to interview them. After the interview(s), and if the employer still wishes to employ you instead any applicant, the employer must again submit to the state labor department the reasons why any U.S. worker was not acceptable. Reasons for rejection may include typical hiring concerns, such as character, work habits, etc.

Step Three: Send in Approved ETA-750

Once the ETA-750 is approved, your employer will send in the approved ETA-750 form and, as in an H1-B application, submit an I-129 and H Supplement, along with the filing fee. This application will include proof of your education and experience that qualifies you for the job, which must be consistent with the job description that was initially described in the ETA-750. The proof may consist of diplomas, transcripts from your schools, and letters and affidavits from previous employers, which indicate your title, duties and the length of time you were employed. You also may be required to demonstrate that your stay on this visa is only going to be for term of the requested visa time period, usually by showing that you have property and family in your home country. These petitions are generally approved by the USCIS between two and four months.

Extensions

Extensions are available for one year, but you may not stay in the U.S. as a H2-B visa holder for more than a total of three (3) years. You will be required to go through the same process for an extension as you did in order to originally obtain the visa. Domestic reissuance is no longer available. See, Note, supra.

U.S. or Consular Processing

The rules are the same for H2-B visas as H1-B visas.

Denials

The rules are the same for H2-B visas as H1-B visas.

H-3 Visas

H-3 Visas are issued to persons who want to obtain on-the-job-training provided by a U.S. company.