One of the more frequently used nonimmigrant visas is the specialty worker or H-1B visa, This category Commonly is used by professionals Such as doctors, accountants, engineers, psychologists, librarians, and others, who will work temporarily in the United States.

The basic requirement for a person 10 be classified H-IB is a college degree (or higher) and a job that is in the field of the degree, For example, H-1B status might be appropriate for a person who has a Ph.D. in geology and who will work as a college lecturer in geology, or a person who has a B.S. in civil engineering who is to work as a civil engineer. The status probably would not be appropriate for the engineer to work as a lecturer in geology or for the geologist to work as an engineer.

The INS views a professional as a person who applies in his job a body of highly specialized knowledge such as that studied in a baccalaureate or higher degree program. Persons who never earned a B.S. or B.A degree might still qualify if they have sufficient training or experience. The INS uses a 1 to 3 mule to determine equivalence to a degree: in general, three years of training or experience can count as one year of college. Therefore, a person who finished three years of college in his field but lacks the fourth year can qualify for an H-1B if he has three years of relevant training or experience in the field to make up for the missing year in his education.

An H-18 worker may remain in the U.S. temporarily up to a maximum stay of six years. The status can be granted for a three year period initially, and an extension of up to three more years can be granted when the initial period expires. The time of initial stay can be less than three years, however, depending on the employers need. The position itself need not be temporary and there can be a permanent need for the position in the employers business. It is the need for the H1B employee that must be temporary. The roles thus require that the classification cannot be used for permanent employment of the H-1B employee,

While the H-1B status is temporary, and the employer and employee must intend for the employment to be temporary, there is no longer any need for the H-1B to prove that he or she is not an immigrant and that he or she will return to the home country at the end of the job. The need to prove “non-immigrant intent” sometimes was a problem for an H-1B. For example, a college professor came to the U.S. leaving his wife and children in India. He changed status to H-1B and his family applied for H-4 visas so that they could come to the U.S. The family, however, were refused visas because they were unable to show the consular officer they would return to India when the temporary job ended. This had the effect of keeping the family “hostage” to ensure that the H-1B worker returned, Now, however, proving nonimmigrant intent should not be so much of a problem because the law does not require the H-1B (or H-4) visa applicant to prove that he or she will return home at the end of the job. Indeed, regulations now specifically provide that an H-1B petition or an extension of stay shall not be denied where the alien has begun the process for permanent residence and has an approved labor certification application or a pending 1-140 petition.

Created in 1952, 53,000 H-1 visas were issued by the State Department in 1990. The category proved to be so popular, however, that in 1990 political opponents were able to push through Congress certain restrictions on the category. Employers who want to hire an H-1B temporary worker now must attest, among other things, that the H-1B and all similar H-1B workers are paid the prevailing wage or the “actual” wage. These certifications are designed to protect American workers and eliminate the practice of hiring foreign workers at wages lower than the going rate. Penalties may be imposed for violation of the attestations. Additionally, the total number of H-1B workers now is limited to 65,000 annually.

As a practical matter, these new requirements mean that the process for getting an H-1B visa takes longer and costs more. Before the INS petition can be billed, the employer must first file with the regional office of the Department of Labor (DOL) a “labor condition attestation” or LCA. The LCA is not a labor certification and no test of the job market is required.

Wages and working conditions. A copy of the LCA approved by the DOL must be submitted with the INS petition. Because Congress was concerned that this preliminary step could unduly delay the INS application when a worker was urgently needed, the law now clearly states that the DOL must process the LCA in seven days. Nevertheless, with this additional step, employers and workers should allow 10-12 weeks between Starting the application and starting work on the job.

This information is offered as a general guide to the law because people affected by the law should have basic information available to them. It is no substitute, however, for competent legal advice. Because each case is different, readers should consult with a competent attorney to see how the law applies in particular cases.

Article extracted from this publication >> September 4, 1992