Simkin.com - H Visas

The H Visas are the most common of the work visas, however they are limited in number and not everyone who desires one will get one. There are also various restrictions and requirements that go along with these Visas, and particularly if one is a Canadian citizen and H Visa may not be the best option. Canadian citizens may find the TN Visa is a better option depending upon the situation.

In order to obtain an H Visa you must have a job offer in the US and the employer must file a petition for the Visa on your behalf. You cannot petition for one yourself. H Visas are meant to be temporary and you must show intent to return to your country at the end of your stay.

The H-1B is a very common, highly sought after Visa. It is for those coming to perform a skilled or specialty function that they have experience doing. It typically requires at least a bachelor's degree, and nearly 1/3 of the H-1B's alloted each year are reserved for those with advanced degrees. Because of the limit imposed on the number of H-1B Visas that are ditributed each year many companies avoid hiring non-US citizens. If it is your only option then you will need to find a company willing to submit a I-129 petition to the Dept. of Labor (DOL) on your behalf. In order for a company to be eligible to even consider hiring citizens of other countries they must file a Labor Condition Application (LCA) with the DOL. When submitting an I-129 petition they must always include a copy of the LCA approval.

H-1B's are also employer specific, meaning that you must come to the US to work for that employer if you are granted a Visa. If you obtain a new offer while in the US and wish to take it you must have that employer file another petition, and you may not begin to work for the new employer until your request to change jobs is granted. Similarly, if you wish to work for multiple employers in the US simultaneously, each employer must file a separate petition on your behalf, and each one must be approved individually.

Typically the H-1B lasts up to six years, and you are not required to keep a permanent residence outside of the US during this time. It is best to show an intent to return to your country once the Visa has expired, however dual intent is acceptable once you have obtained the H-1B and you may apply for permanent residence while working in the US.

It is most important for you to show your experience in a specialty area and acquired skills that are directly applicable to the position your are being considered for. Proof of degrees and certifications is generally expected, advanced degrees being the most attractive, however depending upon the position and the number of years of experience a person has it is possible to fulfill this requirement without a degree as well.

It is important for the employer to prove they have a need for your specialized skills and cannot obtain the necessary help within the US. They must also show that they are paying you at a rate that is reasonable for the position, and are not attempting to hire non-citizens in order to cut costs. In addition they must publicly display their intent to hire those with H-1Bs. The employer must be careful when filing a petition on your behalf as errors on the form are a common reason for Visas not to be issued.

The ease of obtaining an H-1B, and whether or not the H-1B is even the best option for you rely heavily on a number of factors including your country of citizenship, your highest level of education completed, the amount of experience you have, how in demand your expertise is at a given time, your intent to apply for permanent residence, and other information involving your status within a company or organization as well as what type of organization or company you plan to work for. There are various other Visa options out there that may be better suited for a person than the H-1B. Talking to a professional that is experienced in immigration law can be a wise choice as they can better determine from your situation what Visa is best for you.

The H-1C Visa is a specialty Visa for Nurses coming to the US to work temporarily (up to three years) to fill positions that otherwise could not be filled.

(A) For purposes of H-1C classification, the term "registered nurse" means a person who is or will be authorized by a State Board of Nursing to engage in registered nurse practice in a state or U.S. territory or possession, and who is or will be practicing at a facility which provides health care services.

(B) A United States employer which provides health care services is referred to as a facility. A facility may file an H-1C petition for an alien nurse to perform the services of a registered nurse, if the facility meets the eligibility standards of 20 CFR 655.1111 and the other requirements of the Department of Labor's regulations in 20 CFR part 655, subpart L.

(C) The position must involve nursing practice and require licensure or other authorization to practice as a registered nurse from the State Board of Nursing in the state of intended employment.

(D) A petition or application for change of status for an H-1C nurse may be filed and adjudicated only at the Vermont Service Center.

H-2A requirements

The H-2A Visa is for agricultural workers entering the US to do temporary or seasonal work. Rarely will an H-2A Visa be extended for more than one year, but if there is an extreme need the employer can file for year long extentions for two years following the initial year. However, three years is the longest a person can stay continuously in the US on an H-2A Visa. Additionally you must show an intent to leave the country at the end of your stay, which generally requires keeping a permanent residence in your home country.

Filing a Petition for an H-2A

(A) General. An H-2A petition must be filed on Form I - 129. The petition must be filed with a single valid temporary agricultural labor certification. However, if a certification is denied, domestic labor subsequently fails to appear at the worksite, and the Department of Labor denies an appeal under section 216(e)(2) of the Act, the written denial of appeal shall be considered a certification for this purpose if filed with evidence which establishes that qualified domestic labor is unavailable. An H -2A petition may be filed by either the employer listed on the certification, the employer's agent, or the association of United States agricultural producers named as a joint employer on the certification.

(B) Multiple beneficiaries. The total number of beneficiaries of a petition or series of petitions based on the same certification may not exceed the number of workers indicated on that document. A single petition can include more than one beneficiary if the total number does not exceed the number of positions indicated on the relating certification, and all beneficiaries will obtain a visa at the same consulate or are not required to have a visa and will apply for admission at the same port of entry.

(C) Unnamed beneficiaries. The sole beneficiary of an H - 2A petition must be named in the petition. In a petition for multiple beneficiaries, each must be named unless he or she is not named in the certification and is outside the United States. Unnamed beneficiaries must be shown on the petition by total number.

(D) Evidence. An H - 2A petitioner must show that the proposed employment qualifies as a basis for H - 2A status, and that any named beneficiary qualifies for that employment. A petition will be automatically denied if filed without the certification evidence required in paragraph (h)(5)(i)(A) of this section and, for each named beneficiary, the initial evidence required in paragraph (h)(5)(v) of this section.

(E) Special filing requirements. Where a certification shows joint employers, a petition must be filed with an attachment showing that each employer has agreed to the conditions of H - 2A eligibility. A petition filed by an agent must be filed with an attachment in which the employer has authorized the agent to act on its behalf, has assumed full responsibility for all representations made by the agent on its behalf, and has agreed to the conditions of H - 2A eligibility.

Effect of the labor certification process. The temporary agricultural labor certification process determines whether employment is as an agricultural worker, whether it is open to U.S. workers, if qualified U.S. workers are available, the adverse impact of employment of a qualified alien, and whether employment conditions, including housing, meet applicable requirements. In petition proceedings a petitioner must establish that the employment and beneficiary meet the requirements of paragraph (h)(5) of this section. In a petition filed with a certification denial, the petitioner must also overcome the Department of Labor's findings regarding the availability of qualified domestic labor.

Temporary and seasonal employment

(A) Eligibility requirements. An H - 2A petitioner must establish that the employment proposed in the certification is of a temporary or seasonal nature. Employment is of a seasonal nature where it is tied to a certain time of year by an event or pattern, such as a short annual growing cycle or a specific aspect of a longer cycle, and requires labor levels far above those necessary for ongoing operations. Employment is of a temporary nature where the employer's need to fill the position with a temporary worker will, except in extraordinary circumstances, last no longer than one year.

(B) Effect of Department of Labor findings. In temporary agricultural labor certification proceedings the Department of Labor separately tests whether employment qualifies as temporary or seasonal. Its findings that employment qualifies is normally sufficient for the purpose of an H - 2A petition. However, notwithstanding that finding, employment will be found not to be temporary or seasonal where an application for permanent labor certification has been filed for the same alien, or for another alien to be employed in the same position, by the same employer or by its parent, subsidiary or affiliate. This can only be overcome by the petitioner's demonstration that there will be at least a six month interruption of employment in the United States after H - 2A status ends. Also, eligibility will not be found, notwithstanding the issuance of a temporary agricultural labor certification, where there is substantial evidence that the employment is not temporary or seasonal.

Admission

(A) Effect of violations of status. An alien may not be accorded H - 2A status who the Service finds to have violated the conditions of H - 2A status within the prior five years. H - 2A status is violated by remaining beyond the specific period of authorized stay or by engaging in unauthorized employment.

(B) Period of admission. Notwithstanding paragraph (h)(13) of this section, and except as provided in paragraph (h)(5)(vii)(C) of this section, an alien admissible as an H - 2A shall be admitted for the period of the approved petition plus a period of up to one week before the beginning of the approved period for the purpose of travel to the worksite, and a period following the expiration of the H - 2A petition equal to the validity period of the petition, but not more than ten days, for the purpose of departure or extension based on a subsequent offer of employment. However, this extended admission period does not affect the beneficiary's employment authorization. Such authorization only applies to the specific employment indicated in the relating petition, for the specific period of time indicated.

(C) Limits on an individual's stay. An alien's stay as an H -2A is limited by the term of an approved petition. An alien may remain longer to engage in other qualifying temporary agricultural employment by obtaining an extension of stay. However, an individual who has held H - 2A status for a total of three years may not again be granted H - 2A status, or other nonimmigrant status based on agricultural activities, until such time as he or she remains outside the United States for an uninterrupted period of six months. An absence can interrupt the accumulation of time spent as an H - 2A. If the accumulated stay is eighteen months or less, an absence is interruptive if it lasts for at least three months. If more than eighteen months stay has been accumulated, an absence is interruptive if it lasts for at least one-sixth the accumulated stay. Eligibility under this subparagraph will be determined in admission, change of status or extension proceedings. An alien found eligible for a shorter period of H - 2A status than that indicated by the petition due to the application of this subparagraph shall only be admitted for that abbreviated period.

H-2B requirements

An H-2B nonagricultural temporary worker is an alien who is coming temporarily to the United States to perform temporary services or labor, is not displacing United States workers capable of performing such services or labor, and whose employment is not adversely affecting the wages and working conditions of United States workers.

As a general rule, the period of the petitioner's need must be a year or less, although there may be extraordinary circumstances where the temporary services or labor might last longer than one year. The petitioner's need for the services or labor shall be a one-time occurrence, a seasonal need, a peakload need, or an intermittent need.

H-3 requirements

The H-3 trainee is a nonimmigrant who seeks to enter the United States at the invitation of an organization or individual for the purpose of receiving training in any field of endeavor, such as agriculture, commerce, communications, finance, government, transportation, or the professions, as well as training in a purely industrial establishment. This category shall not apply to physicians, who are statutorily ineligible to use H-3 classification in order to receive any type of graduate medical education or training.

Evidence required for petition involving alien trainee--The petitioner is required to demonstrate that:

(1) The proposed training is not available in the alien's own country;

(2) The beneficiary will not be placed in a position which is in the normal operation of the business and in which citizens and resident workers are regularly employed;

(3) The beneficiary will not engage in productive employment unless such employment is incidental and necessary to the training; and

(4) The training will benefit the beneficiary in pursuing a career outside the United States.

There are also many numerical restrictions on the number of H-3's available. If you are considering this VISA you should determine which restrictions apply to you.

H-4 requirements

The spouse and unmarried minor children of the beneficiary of an H VISA are entitled to H-4 nonimmigrant classification, subject to the same period of admission and limitations as the beneficiary, if they are accompanying or following to join the beneficiary in the United States. Neither the spouse nor a child of the beneficiary may accept employment unless he or she is the beneficiary of an approved petition filed in his or her behalf and has been granted a nonimmigrant classification authorizing his or her employment.

For more information, or for help determining and obtaining the right VISA for you, please consider a legal consultation.