H-1B Specialty Workers and Fashion Models
The H-1B visa is the most common visa used by employers in the United States to employ foreign nationals. The H-1B visa is a nonimmigrant visa used by a foreign national who will be employed temporarily in a specialty occupation, or as a fashion model of distinguished merit and ability.
The H-1B Visa allows a U.S. employer to fill a position requiring the minimum of a bachelor’s degree in the particular field with a qualified worker from abroad. The foreign worker must possess at least a bachelor’s degree or its equivalent. In some cases, a combination of studies and relevant experience may substitute for the degree requirement.
(Links to headings below)
Specialty Occupation Requirement
Who can apply?
Terms and Conditions of Visa
What if the employer terminates the employment prior to the end of the approved period of employment?
Do H-1B workers in U.S. need to maintain their foreign residence?
Limitations on H-1B Visa
Duration of Stay under H-1B Visa
Travel Outside of U.S
Premium Processing for H-1B Petitions
Dependents
H-1B2 Research and Development Project
H-1B3 Fashion Model
Other Frequently Asked Questions
Specialty Occupation Requirement
A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.
Who can apply?
The petition for the H-1B visa should be filed by the U.S. employer on behalf of the foreign candidate for employment.
Terms and Conditions of Visa
Some terms and conditions of the H-1B classification:
Work authorization for H-1B foreign specialty workers is employer-specific (i.e. limited to employment with the approved employer/petitioner).
A change of employer requires a new H-1B petition; under some circumstances, a nonimmigrant that was previously issued an H1-B visa or provided H1-B nonimmigrant status may begin working for a new H1-B employer. Multiple employers require multiple H-1B petitions.
What if the employer terminates the employment prior to the end of the approved period of employment?
The employer is responsible for return transportation costs for an employee terminated prior to the end of the approved period of employment.
Do H-1B workers in U.S. need to maintain their foreign residence?
H-1B foreign specialty workers are not required to maintain foreign residence and may seek permanent residence in the U.S.
Limitations on H-1B Visa
The current law limits the number of H-1B foreign nationals to 65,000. Petitions for positions starting on or after October 1, (beginning of a fiscal year) may be submitted up to 180 days ahead of the requested start date. Laws exempt up to 20,000 foreign nationals holding a master’s or higher degree from U.S. universities from the cap on H-1B visas
Visas will still be available for applicants filing for amendments, extensions, and transfers. The cap also does not apply to applicants filing H-1B visas through institutions of higher education, nonprofit research organizations, and government research organizations. Additionally, the limit on the number of H-1B visas does not apply to persons that are already in H1-B status.
However, if a person who currently holds an H-1B visa leaves an employer and waits more than 30 days to apply for a new H-1B visa, the cap would apply again. Also, if a person who works for a cap-exempt employer and then switches to an employer that is not exempt, the cap will apply.
Duration of Stay Under H-1B Visa
H-1B workers are admitted to the United States for an initial period of three years, which may be extended for an additional three years (so a maximum of six years). A foreign national can reapply under the H-1B category after leaving the country for 1 year.
Travel Outside of U.S
Generally, a foreign national can leave and re-enter the U.S during the validity period of the H-1B visa.
Premium Processing for H-1B Petitions
An employer can request premium processing which requires the USCIS to adjudicate the petition within 15 calendar days. The fee for premium processing is $1,225 USD. If the USCIS fails to respond within 15 calendar days, it will refund the $1,225 fee and continue to process the petition under the expedited process.
Dependents
Dependents (spouses and unmarried children under 21 years of age) of H-1B workers are eligible for H-4 status with the same restrictions as the principal. Dependents may not be employed under the H-4 classification.
H-1B2 Research and Development Project
The H-1B2 category applies to an alien coming temporarily to perform services of an exceptional nature relating to a cooperative research and development project administered by the Department of Defense.
The petition should be filed by the U.S. employer intending to employ a foreign worker.
H-1B3 Fashion Model
The H-1B3 category applies to a fashion model that is nationally or internationally recognized and will be employed in a position requiring someone of distinguished merit and ability (has received recognition for significant achievements from organizations, critics, fashion houses, modeling agencies or other recognized experts in the field).
The visa petition for the model should be filed by the U.S. employer.
Other Frequently Asked Questions
Who can foreign national in H-1B status work for?
An H-1B foreign national must work for the petitioning U.S employer, and only H-1B activities described in the petition. The employee can work for more than one employer, or transfer their H-1B visa to another employer as long as the appropriate petitions have been filed with the USCIS.
Why is the H-1B Visa used for most Foreign Nationals?
One of the main attractions of the H-1B visa category is that the employer does not need to demonstrate that there is a shortage of qualified U.S workers through the tedious labor certification process.
Another important Advantage is that the H-1B visa allows a foreign national to have a “dual intent”. This means that a foreign national can have the intent to become a permanent resident while in the U.S. under a temporary work visa.
Can I get a Green card while on an H-1B visa?
In order to obtain permanent residency while on an H-1B visa, your employer must file the appropriate applications with the Department of Labor and Immigration Services, with several required documentations, but there are legal issues as well as many practical issues of which one should be aware. A consultation with an attorney is a good idea.
