H-1B1 Professional Work Visas

1. A bachelor's degree or higher in a specific feild is the entry-level requirement,
2. The degree requirement for the job offered is accepted throughout the industry,
3. The duties and responsibilities of the position offered are so complex that a university degree is required, and
4. The level of responsibility involved in the position is generally associated with professional status.

Foreign university degrees must be evaluated in terms of their equivalence to U.S. university degrees, before proceeding with the H-1B visa petition. The 1990 U.S. Immigration Act exempts H-1B aliens from showing that they did not intend to immigrate to the U.S. at the time that they applied for their initial H-1B Temporary work visa, or renewal. Therefore, H-1B aliens are able to successfully renew their visas, even after applying for permament residency (Green Card) status. In other visa cases, the U.S. Immigration service routinely denies such renewal requests, due to the problem of conflicting intent. In these cases the alien must show that he/she intends to remain in the U.S. only temporarily, and then return to his/her home country when the job is terminated. Once such an alien applies for permanent residency, the U.S. authorities assume that his/her real intent is to remain in the U.S. permanently.

The processing time for an H-1B visa is usually 4-6 weeks. Spouses and dependent children of H-1 aliens receive H-4 visas allowing them to accompany the principal alien, but not to work. Each H-1 visa is tied to the sponsoring employer. An H-1 alien in the U.S. may change employers provided that the new employer has obtained approval of a new H-1 petition on behalf of the alien. H-1 aliens are not exempt from the Labor Certification process when applying for permanent residency. This process may take from 12 months to 2 years to complete. During that time the U.S. employer must prove that no U.S. citizen or resident is qualified to assume the position offered.

Foreign medical graduates interested in providing direct patient care for an employer in the U.S. must meet the following conditions in order to qualify for H-1 status:

1. The foreign medical graduate must have either passed the FLEX exams, or equivalent examinations such as the National Board of Medical Examiners certifying exams (parts I, II, and III) and the United States Medical Licensing Exams (steps 1, 2, and 3).;
2. The foreign medical graduate is competent in oral or written English;
3. The foreign medical graduate has a full unrestricted license to practice medicine in a foreign state; and
4. The foreign medical graduate has a license or other authorization required by the state of intended employment to practice medicine. Conditions 1,2 and 3 need not be met by alien graduates of U.S. medical schools.
   1. Canadian Physicians in a speciality practice such as Hair Transplant Surgery, and Cosmetic Surgery, opening a U.S. branch office are exempt from the above USMLE, and Flex requirements, and may submit a Corporate Transferee Visa Petition at a Class "A" U.S./Canada Border Port of Entry, without the need to first obtain a state license.

      THE USCIS HAS IMPLEMENTED H-1B VISA REFORM ACT OF 2004

      New Law Changes Aspects of the Temporary Work Program New Fees Before October 1, 2003, employers who used the H-1B program were required to pay an additional $1,000 fee imposed by the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA). In part, that $1,000 fee paid for U.S citizens, lawful permanent residents and other U.S. workers to attend job training and receive low-income scholarships or grants for mathematics, engineering or science enrichment courses administered by the National Science Foundation and the Department of Labor. Those ACWIA fee requirements sunset on October 1, 2003. The H-1B provisions of the Omnibus Appropriations Act reinstitutes the ACWIA fee and raises it to $1,500. Petitioners who employ no more than 25 full-time equivalent employees, including any affiliate or subsidiary, may submit a reduced fee of $750. Certain types of petitions, that were previously exempt from the $1,000 fee, are still exempt from the new $1,500 and $750 fee. The new $1,500 and $750 fee applies to any non-exempt petitions filed with USCIS after December 8, 2004. In addition, the Act creates a new Fraud Prevention and Detection Fee of $500 which must be paid by petitioners seeking a beneficiary’s initial grant of H-1B or L nonimmigrant classification or those petitioners seeking to change a beneficiary’s employer within those classifications. Other than petitions to amend or extend stay filed by an existing H-1B or L employer, there are no exemptions from the $500 fee. The new $500 fee applies to petitions filed with USCIS on or after March 8, 2005. Each of these fees is in addition to the base processing fee of $185 to file a Petition for a Nonimmigrant Worker (Form I-129) and any premium processing fees, if applicable. H-1B Cap This Act, and Public Law 108-441 (Dec. 3, 2004), provides new exemptions from the congressionally mandated annual H-1B cap. The first 20,000 H-1B beneficiaries who have earned a master’s degree or higher from a U.S. institution of higher education are not subject to the annual congressionally mandated H-1B visa cap of 65,000. After those 20,000 slots are filled, USCIS is required to count those cases against the cap for the remainder of the fiscal year. For FY 2005, the new provision will allow USCIS to accept new petitions on behalf of up to 20,000 beneficiaries meeting these criteria. Petitions under this provision cannot be filed at this time, as the provision is not effective until March 8, 2005. USCIS will provide additional guidance on eligibility and process at a later date. Public Law 108-441 extended the “Conrad 30” J-1 program covering certain medical graduates. Nonimmigrants currently in the United States on a J-1 (exchange) visa who receive a waiver of the two-year residency requirement if requested by either a federal or state agency are now exempt from the H-1B cap. Qualifying employers of these beneficiaries may submit H-1B petitions, notwithstanding the fact that the H-1B cap was already met for FY 2005, after December 8, 2004. Petitioners must separately evaluate whether an H-1B petitioner is exempt from certain fees and whether the petition is exempt from the H-1B cap, because the rules applicable to each type of exemption are not the same. For example, a petition by an otherwise non-exempt employer to extend the H-1B stay of a beneficiary for the first time would be exempt from the H-1B cap, but not from either the $1,500 or $750 fee.

      
      

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