For a specialty occupation H-1B petition, the employee must have a bachelor’s degree (4 year degree) or the equivalent experience. The degree can be received from an institution in the United States, or in a foreign country. The degree must be from an accredited university or college.
A foreign national who does not hold a 4 year bachelor’s degree can still qualify for H-1B if they have a sufficient combination of experience and education. In order to equal 4 years of education every three years of experience can be substituted for one year of university or college.
The first step in the process is that the petitioning employer must file a Labor Condition Application (LCA) from the U.S. Department of Labor before filing the H-1B petition with the USCIS. The LCA verifies that the employer will pay the prevailing wage for the position in the designated place of employment.
One major difference with the H-1B visa is that it allows for dual intent. Most nonimmigrant visa classifications (except for L-1) require that a person maintain a foreign residence abroad and show that he or she is coming to the U.S. temporarily with the intent to return to his/her home country upon completion of the relevant visa status. However, an individual on an H-1B visa can have the intent to immigrate to the United States while in H status.
As a result, the filing of an application for labor certification (also known as PERM) or an employment based preference petition will allow the individual to maintain the H-1B status while pursuing a green card.
The H-1B visa allows nonimmigrants to be admitted for an initial period of up to three years. This period may be extended, but generally not beyond a total of six years. The exception to this is if the foreign national has an I-140 filed 365 days before the expiration of the 6th year of H-1B status, or an approved I-140 any time before the end of the 6th year of H-1B status. Dependent family members (spouse and children under 21 years of age) may enter on an H-4 visa along with the principal beneficiary. Under most circumstances, the H-4 visa does not permit an individual to work in the U.S. but he/she may go to school. Our lawyers based in New York have extensive experience with this visa category and have successfully guided companies of all kinds with successful applications