The Visa Waiver Program allows citizens of specific countries to come to the United States for a limited purpose. The 38 designated countries include: Andorra, Australia, Austria, Belgium, Brunei, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, South Korea, Spain, Sweden, Switzerland, Taiwan, United Kingdom. Individuals from these countries complete an ESTA form prior to flying to the U.S. If admitted, they are allowed to stay for 90 days.
If you are traveling to the United States for business for a short period of time, you may be eligible for a B-1 visa. There is a list of specific business activities permitted to be performed under the B-1 visa. Such activities include, but are not limited to: negotiating contracts, consulting with business associates, etc. You will bear the burden of proving that you have a valid reason to visit the United States to engage in lawful business activity for a specific duration of time. You will also bear the burden of proving that you have significant ties to your home country, that you will not be paid by the U.S. company, and that you intend to return after concluding your business.
If you are a citizen or national of Australia who is coming to the United States to perform professional “specialty occupation” assignment in the United States, you may be eligible for an E-3 visa. In order to qualify for an E-3 visa, you will need to provide proof of your Australian citizenship, Bachelor’s degree, professional license (if required for the assignment by law), and information about the U.S. company and job. You may apply for an E-3 visa at a U.S. consulate abroad or request a change of status from USCIS.
E-3 status may be valid for up to two years and may be renewed indefinitely.
I am an E-3 professional. I am married. Can my spouse work? What does he/she need to do in order to work in the United States?
Spouses of E-3 professionals hold E-3D status. An E-3D beneficiary is eligible to work in the United States. He/she is eligible to apply for Employment Authorization Document. Once the spouse receives an EAD, he/she may be employed by any employer.
Each year there is a congressionally mandated cap on the number of available H-1B visas of 65,000, with an additional 20,000 H-1B visas allotted for foreign nationals holding U.S. advanced degrees. Once this cap has been reached, U.S. Citizenship and Immigration Services (USCIS) stops accepting H-1B petitions for processing until the next H-1B season. USCIS begins to accept filings of new H-1B petitions on April 1st. Because the H-1B petitions cannot be filed more than six months in advance of the requested start date, all employers in the U.S. seeking to hire new H-1B employees rush to file on April 1st to apply for the prospective employees to start work on October 1st. During the years of highest demand, the cap has been reached within […]
No. Under the current regulations, H-4 dependent spouses of principle H-1B holders are unable to work in the United States. However, as part of its effort to attract and retain highly skilled immigrants, the Department of Homeland Security is in the process of proposing rules to extend employment authorization to spouses of certain H-1B workers. For more information, please visit www.dhs.gov
I am employed by an institution of higher education. Is my employer subject to the H-1B numerical limitation?
No. If you are employed by an institution of higher education or a related or affiliated nonprofit entity or by a nonprofit research organization or a government research organization you are not subject to the cap. The employer can file the H-1B petition on your behalf at any time during the fiscal year and is not subject to the April 1st deadline. If you change employers and your new employer is not an institution of higher education or a nonprofit entity related or affiliated with an institution of higher education or a government research organization, you will be subject to the cap.
I have a Master’s Degree from a foreign university. Do I qualify for the additional 20,000 H-1B visas allotted to individuals holding advanced degrees?
No. The additional 20,000 H-1B visas are available to individuals holding advanced degrees obtained from U.S. colleges and universities.
I have a Bachelor’s Degree from a foreign university. Do I automatically qualify for the 65,000 H-1B visas allotted to individuals holding a Bachelor’s degree?
No. If you hold a degree from a foreign college or university, you will need to request a foreign degree credential evaluation that establishes that you have a foreign education equivalent to a U. S. degree. USCIS will review the credential evaluation to confirm that you qualify, on the basis of education alone, for the H-1B classification.
Yes. The H-1B classification requires that the occupation itself normally require at least a Bachelor’s degree. However, you may establish that you qualify for the H-1B classification based on your professional experience. The experience is generally documented through letters from past employers that show progression to more responsible duties through the years of employment. In evaluating the experience, USCIS applies a three for one rule – three years of specialized training and/or experience is equivalent to one college-level year.
An H-1B petition may be valid for up to three years. H-1B petition may be extended for an additional period of up to three years, to a maximum of six years. At the end of the sixth year, the individual must return home for a year before obtaining any new H-1B visas if the individual cannot change into another temporary or permanent visa category. Recapture of time spent outside the U.S. while in H-1B status is available since the six year maximum only applies to time spent in H-1B status in the U.S. In some limited circumstances you may be eligible for H-1B extensions past the six year limit. For example, if you have a labor certification application, visa petition or adjustment of status application […]
If your petition was not chosen in the H-1B lottery, you may have some options. If you are a STEM student, you may qualify for an additional 17 months OPT Employment Authorization Document extension. The extension will give you an opportunity to continue working and apply for an H-1B again the following year. If you a citizen of Canada or Mexico, you may be eligible for a TN visa. The TN classification is for Canadian and Mexican citizens who will perform professional assignments in the United States. You must be performing a professional assignment (with a few exceptions) as specified on the North American Free Trade Agreement (NAFTA) occupations list and meet the corresponding educational and/or licensure requirements. If you are a citizen of Australia, […]
I already hold an H-1B status in the United States. Do I still need to pay attention to the April 1st deadline?
No. If you already hold an H-1B status in the United States, you have already been counted towards the cap (unless you were previously employed by an institution of higher education or an entity affiliated with an institution of higher education). Because you have already been counted, you do not need to be counted again. Your current H-1B is not “transferred” to your new employer; rather, the employer needs to petition for a new H-1B. Your new employer may file an H-1B petition on your behalf at any time, provided the assignment you will be performing is a professional assignment and all the additional H-1B requirements are met.
No. Because the H-1B visa is employer specific, you may not be employed by a new employer until the new employer files a new H-1B petition on your behalf. Because you are already in H-1B status, you do not need to wait for the new H-1B petition to be approved and can start work as soon the new employer receives a fee receipt from USCIS stating that USCIS has accepted the H-1B petition for processing.
The fees to USCIS for an H-1B petition include the $500.00 anti-fraud fee paid only for the initial petition, the $325.00 fee for I-129 form, and an employer fee of either $1,500.00 for employers with more than 25 employees, or $750.00 for employers with 25 or fewer employees. These fees must be paid by the employer and cannot be paid by the employee.
USCIS regulations define a “specialty occupation” as an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the obtainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.
To show that a position is a specialty occupation, the petitioning employer must show one of the following: a) that a baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position; b) the degree of requirements common to the industry in parallel positions or in the alternative, the particular position is so complex or unique that it can be performed only by an individual with a degree; c) the nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the obtainment of a baccalaureate or higher degree.
As a prospective Beneficiary of an H-1B petition, you need to meet the following requirements: a) hold a U.S. baccalaureate or higher degree required by the specialty occupation from an accredited college or university or b) hold a foreign degree determined to be equivalent to a U.S. baccalaureate degree. USCIS may request an evaluation of a foreign degree to determine whether it is the equivalent of a U.S. baccalaureate; c) hold an unrestricted state license, registration or certificate which authorizes full practice in the specialty occupation, or d) have education, specialized training, and/or progressively responsible experience that is equivalent to completion of a U.S. baccalaureate or higher degree and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
I am a U.S. employer seeking to hire an employee pursuant to an H-1B visa. Is there a specific salary requirement I need to pay attention to?
Yes. All H-1B workers must receive the same benefits as U.S. workers. USCIS regulations require that the foreign employee be paid the “prevailing wage” that is paid for the position in the area of employment. This can be determined by accessing the Department of Labor online wage library for a preliminary determination or conducting a qualified survey and requesting a prevailing wage from the Department of Labor.