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Q:
I have
heard a lot about H-1B visas. Can
you tell me what it is and who can qualify for it? My brother, who is visiting me from Russia, is a computer
programmer. He would like
to stay in the U.S. to work. Is the H-1B visa appropriate for him?
A:
The H-1B
visa, also called the Guest
Worker
visa or Specialist
Worker
visa, is for people to come to the U.S. to work for up to 6 years.
The general requirements are that that your brother have a
university degree (or equivalent experience) and that the position be a
professional one that genuinely requires at least a bachelor's degree.
It is a
very popular visa, and is the immigration avenue used most frequently by
the high technology industry to obtain staff from other countries.
Generally,
high-tech positions easily qualify, as well as, for example, architects,
lawyers, physicians, professors, and some managerial positions.
Your
brother must first locate an employer who is willing to hire him, and to
sign a visa petition on his behalf.
Once an
employer is found, the process begins with papers being filed with the
U.S. Department of Labor, and then with the INS. Upon approval, your brother will apply for a change of visa
status with the INS. (If he
were in Russia, he would apply at a U.S. consulate there)
In many
cases - especially where the employer is not very small or hires many
foreign workers -- the employer=s
human resources department will take care of the papers. In some cases, the employer may be small, new, or otherwise too
unsure, incapable, and/or unwilling to take care of the paperwork
itself. In such cases, the
foreign worker will be expected to do so.
In many
such cases, the employer will expect the foreign worker to pay for
everything as well. However,
one important point to remember in this regard is that the employer, and
not the foreign worker, must pay $500 of the $610 fee itself. Whoever
takes care of the paperwork, it is the employer who will ultimately sign
the petition, and who will obligate itself under the government
documents filed.
The length of the
process can vary, but your brother can probably expect approval within
three months. The approved
petition gives your brother the right to work in that position, and with
that employer, for three years. He
may apply for one three-year extension prior to the end of his current
three-year period.
Q.
I am medical
researcher on an H-1B, and my employer recently gave me a promotion to
head researcher of my project . Do
I need to do anything with my visa status?
A.
One thing that is
frequently overlooked by employers and foreign workers alike is that
changes in the the terms of employment, or the location of employment,
may require that an amended H-1B petition be filed.
In your case, it
sounds like you will not be required to to file an amended petition,
because you are staying within the same occupation. In general, promotions that do not involve a change in
occupations would not require an amended petition.
However, if the
promotion moved you into a different occupation or job category, then an
amended petition would be required. For example, if you were promoted from a medical researcher to a
medical school instructor,
then an amended petition would be required.
Likewise, in many
cases changes in geographic location of employment, even though you are
with the same employer, would require that additional papers be filed
with the government.
The key consideration is whether the change in your employment
was a "material change." Whether a change is "material" is something that,
frequently, only experience can answer.
Q.
I am a pharmacy
student in Ukraine, and have located a pharmacy in Baltimore that would
like to hire me for a year-long internship. However, I don't think I am qualified for the H-1B visa because I
don't yet have a degree. Isn't
there some way I can get a work visa so I can gain experience in my
field?
A.
There are some
alternatives to the H-1B visa for certain individuals who would like to
work in the U.S. for practical training purposes.
One of the most
popular of these is the J-1Visa. This
visa is available for people coming to the U.S. to engage in on-the-job
training with American organizations for up to 18 months. This training
can include productive work for which you can get paid.
If you already have
located a employer, your next step will be to apply for participation in a
program with an officially-recognized J-1 sponsor, such as the Association
for International Practical Training in Columbia, Maryland. The J-1 sponsor is not the same as the employer for whom you wish
to work.
The J-1 sponsor is
an organization that will assist you to get your J-1 visa, ensure that all
the requirements are met by you and your employer, and administer your
program from start to finish.
Some of the more
important requirements that you, as a J-1 trainee, must meet include that
you (1) are at least 18; (2) understand English; (3) are seeking training, and not just work; (4) have the
appropriate education and background for the employment you are seeking;
and (5) intend to return home at the end of your program.
The employer must meet
such requirements as (1) preparing some sort of training plan or
curriculum for the trainee; (2) paying the trainee a reasonable wage; and (3) providing the opportunity
for some sort of cultural activities for the trainee.
To apply, both you and
your employer must complete submit forms to the sponsor, along with along
with an application fee of $400 - $1000.
The sponsor will accept your applications if all is in order, and
will return to you a signed visa sponsorship document that will enable you
to apply for a J-1 visa at a
consulate or the INS. The
entire process can take up to ten weeks or longer.
One important thing to
remember is that in some cases J-1 visa holders may be subject to a 2-year
foreign residency requirement. This
is the requirement that a J-1 visa holder must live in their home country
for two years after their J-1 expires, before they are eligible for
immigrant status, and certain types of non-immigrant, status.
However,
this requirement does not apply to you unless (1) your training is being financed by your government or the
U.S. government; (2) the skills you are training for are in short supply
in your home country; or (3) the training you are engaged in is graduate
medical education or training.
FOR MORE INFORMATION:
Contact John Byrley at
tel: 410-719-1501.
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