H1B Visa

In general, if an H1B petition is for an alien to practice an occupation in a state for which a license is required, the alien must have the requisite license in order for the petition to be approved. However, there are limited circumstances in which an H1B petition can be approved for an alien who does not yet possess the license. This article will discuss the rules for when a petition can be approved for an alien with a temporary license.

On January 4, 2017, the United States Citizenship and Immigration Services (USCIS) made the Administrative Appeals Office (AAO) decision in the Matter of T-O-S-U-, Adopted Decision 2017-01 (AAO Jan 4, 2017), an adopted decision of the USCIS. In the Matter of T-O-S-U-, the AAO held that a “physician of national or international renown” – for the purpose of regulations in 8 C.F.R. 214.2(h)(4)(viii)(C) – “is a doctor of medicine or osteopathy who is the field of medicine within one or more countries, so long as the achievements leading to national renown are comparable to that which would result in national renown in the United States.” Being classified as a “physician of national or international renown” allows an alien who is the beneficiary of an H1B petition to be exempt from the normally applicable medical licensing examination requirement. In this article, we will examine the facts of the Matter of T-O-S-U-, the AAO’s analysis and decision, and what the USCIS adopting the Matter of T-O-S-U- means for “physician of national or international renown” determinations going forward.

H1B status is authorized for a very limited number of aliens entering to render services relating to a Department of Defense (DOD) cooperative research and development or coproduction project. This category is referred to by United States Citizenship and Immigration Services (USCIS) internally as H1B2 [AFM 31.3(a)(3)]. Only 100 H1B2 DOD project aliens may be in the United States on H1B status at any time. H1B2 applicants must meet the same specialty occupation education and experience requirements that H1B specialty occupation applicants must meet. However, there are certain unique rules regarding H1B2 status, most notably that the maximum period of stay is 10 years instead of 6. In this article, we will examine the rules for H1B2 classification and status.

The H1B visa category is open to fashion models of “distinguished merit and ability.” Although the documentary requirements for petitions for H1B fashion models are distinct from other H1B petitions, H1B fashion models are subject to the same rules as H1B specialty occupation workers regarding the period of stay and extensions of stay. In this article, we will review the statutes and regulations regarding H1B fashion models as well as when the O1 visa category may be a superior option to the H1B category.

In order to stay in status, an H1B employee must continue working for his or her H1B employer while in the United States. Generally, an H1B employee must be in status in order to change, extend, or adjust status. This brings up several complicated situations in the case in which the H1B employer terminates the H1B employee’s employment. In this article, we will examine the issues surrounding the termination of an H1B employee while the H1B visa remains valid from the perspective of the H1B employee and the perspective of the H1B employer.

The H1B visa category is a nonimmigrant visa for employing foreign professionals in specialty occupations. By definition, a specialty occupation position requires either the attainment of a baccalaureate degree or higher or the equivalent of such a degree through experience. In this article, we will examine degree equivalencies in the H1B context.

Workers in the United States on nonimmigrant H1B status are limited to a maximum stay of six years in the United States on H1B status. After the expiration of the six year period (the tenure), he or she must remain outside of the USA for at least one year, before they could qualify, if petitioned for by a qualified employer, to obtain another H1B visa, which would again be limited by a new 6 year tenure.

On January 8, 2010, United States Citizenship and Immigration Services (USCIS) released an important memorandum by the Associate Director Donald Neufeld titled “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements”. While the Memo was written to advise USCIS officers on how to determine whether a prospective employer-employee relationship is valid for H1B purposes, it is also instructive for understanding what USCIS officers will look for in evaluating employer-employee issues pertaining to H1B Visas. We will use the Memo, along with other resources, to explore what constitutes an acceptable employer-employee relationship for H1B purposes.

The H1B visa is a type of nonimmigrant visa that allows the visa holder to work in a statutorily defined “specialty occupation” in the United States for three years, with extensions possible in most cases. In order to apply, the nonimmigrant applicant’s employer must submit an H1B petition to the United States Citizenship and Immigration Services (USCIS).