The Law Offices of Robert Nadalin

What Is The H-1B Visa?


The H-1B visa is the most commonly used visa that companies use to sponsor foreign workers.

What Criteria Applies to the H-1B Visa Qualification?

The H-1B visa covers “specialty occupations,” which are jobs that require a bachelor’s degree or equivalent in a specific specialty. For example, an accountant normally needs to have an accounting degree, or perhaps a degree in a closely related field such as finance. An electrical engineer usually needs an electrical or electronic engineering degree. A social worker normally needs a degree in social work, sociology, psychology, etc. The law does provide for an equivalency exception. Sometimes a candidate will obtain an equivalent amount of knowledge through a suitable combination of education, experience, and/ or training.

What Is A Specialty Occupation For The Purposes Of H-1B Visa?

Not all jobs qualify for H-1B visa status, regardless of whether or not the sponsored foreign worker has a bachelor’s degree. To qualify for H-1B status, both the employee’s personal qualifications and the job being offered by the employer must meet the H-1B standard. The job offered by the employer must be a job for which the normal minimum entry requirement is a bachelor’s degree or equivalent. This goes beyond an employer simply saying so, and the applicable USCIS regulations provide for a number of objective ways to confirm this. For example, government resources including the Bureau of Labor Statistics publication known as the Occupation Outlook Handbook (the OOH) may note the kind of education normally required for the job. An employer may be able to confirm the degree requirement by documenting past employment practices, or the common practices of other business competitors in the field. In addition, the employer may be able to document how the specific job duties are so specialized and complex as to require the attainment of a bachelor’s degree in a specific specialty.

Why Is The H-1B Visa Sometimes Referred To As A “Dual Intent” Visa?

Under current U.S. law there are 2 broad categories of visas. The first category is the “immigrant visa,” which is the same as lawful permanent residence or “green card” status. It allows persons to permanently reside in the U.S. and to lawfully work for any employer. The other broad category is the “non-immigrant visa,” which is a temporary visas. There are many subcategories of nonimmigrant visas, each with its own unique requirements. The nonimmigrant visas all start with a letter – B-1/B-2 visitor, F-1 student, H-1B professional, etc. As a general rule, all temporary visa holders must maintain an un-abandoned residence abroad, and all face certain limitations on their ability to work in the U.S. are not permitted to work in the U.S. Having an intent to pursue lawful permanent residence is normally a disqualification from being allowed to hold a temporary visa because having an intent to remain permanently in the U.S. is not consistent with having an intent to go back to the home country after a brief stay. However, a limited number of temporary visas are “dual intent” visas which allow a person to hold a temporary visa while concurrently pursuing lawful permanent residence. The H-1B visa is a dual intent visa. Persons eligible for H-1B status cannot lawfully be denied a new visa stamp or entry to the U.S. for reasons of immigrant intent.

For more information on H-1 B Visas, please feel free to call (619) 234-8875 today.

The Law Offices of Robert Nadalin

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