Q & A: H-1B Visas

April 10, 2001

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.