| Frequently Asked Questions on H-1B Law |
by: Carl Shusterman, Attorney-At-Law
Yes, if you have a four-year college degree, or its equivalent. Three years of professional experience may be substituted for one year of college. Therefore, it is possible for someone with no college at all, but with 12 years of professional experience to qualify for an H-1B visa.
Also, foreign fashion models qualify even if they have never gone to college. (Who said life was fair?!)
2. Do I need a job offer to get an H-1B visa?
Definitely. The offer of employment must require you to have a college degree (or its equivalent) to be able to perform the job. Also, the employer must pay you at the average, or "prevailing", wage.
3. Must the employer advertise the job, or show that there is a shortage of Americans?
Generally, not. However, certain employers are required to prove that there is no "equally-qualified U.S. worker" available for the job. These are referred to in the law as "H-1B-dependent employers" - in general, those employers whose workforce consists of 15% or more H-1B workers.
4. How much is the INS filing fee for an H-1B petition?
Right now, the INS filing fee is $110. However, starting December 1, 1998, the filing fee increases to $610. If possible, file your petition prior to December 1.
5. If I am presently residing in the U.S. as a tourist or a student, can I change my status to H-1B without leaving the U.S.?
Yes, and it's easy to do. Simply check the box on your H-1B petition which indicates that you want to change your status. If you need to travel in and out of the U.S., you will eventually have to obtain an H-1B visa from a U.S. Embassy or Consulate abroad.
6. How long can I stay in H-1B status?
You may stay in H-1B status for three (3) years, and may receive one extension of stay for a total stay of six (6) years.
7. Can I adjust my status from H-1B to permanent resident?
Yes. It is a good idea to start your application for permanent residence as soon as you achieve H-1B status since the Labor Department may take about three (3) years to process your application.
8. Am I allowed to change employers after I am in H-1B status?
Yes. However, your new employer must petition you for H-1B status. You may start your new job after your petition to change employers is approved.
9. Do you expect the new law to have any unexpected side effects?
Yes, I do. While the new law dramatically increases the number of H-1B visas, the number of visas for permanent residents remains the same. I expect the backlogs for permanent residence to begin increasing within a few months. This is another reason to apply for permanent residence early.