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H-1B visa is for workkers in ‘special occupations’

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By Attorney Gotcher

Q: What is an H-1B visa?

A: The H-1B visa is issued to nonimmigrant workers in “specialty occupations.” Essentially, these are all professional level workers — people working in jobs that require at least a bachelor’s degree as a minimum entry requirement. This category allows such workers to be employed for up to six years.

Q: What are the requirements for getting an H-1B?

A: All H-1B workers must begin with a petitioning employer. It is not possible to be a self-employed H-1B worker. The petitioner must have a legitimate job opening available and must agree to pay the alien worker the prevailing  wage for the occupation in the area where the work will be done. The job must be one which customarily requires a bachelor’s degree as a minimum entry requirement and the alien worker must either have such a degree, or equivalent work experience.

Q: How do I apply for an H-1B?

A: The petitioning employer begins by filing a labor condition application (“LCA”) with the Department of Labor. When the LCA is returned with the DOL endorsement stamp, the employer may then file an H petition with the USCIS only after the H petition has been approved and change of status granted, or a nonimmigrant H visa issued, may the alien worker begin working for the employer.

Q: Do I need a new petition if I change employers?

A: Yes. A nonimmigrant H-1B worker may not begin working for a new employer until the USCIS has first approved a petition for such a change. Unless and until the change is granted, the employee may not work.

Q: Do I need a new petition if I change job sites?

A: In most cases, yes. Unless the original petition provided for multiple job sites, and the employer has a valid LCA for the new job site, your employer will have to file a new petition on your behalf before you may work at the new job site.

Q: Do I need a new petition if I get promoted?

A: If the new position is different from the one described in the approved H petition, your employer must file a new petition on your behalf. If the changes are only minor, then it may not be necessary. You should always check with an expert, however, to make sure that you do not inadvertently violate your status.