An employer will file the temporary worker petition by filing the I-129 form. Such form should be filed no earlier than six months and no later than 45 days before the planned employment or extension thereof. Some employment positions require an approval from the State Department. Petitions are sent to various USCIS Service Centers depending on the employer’s location, except for H1C nurse petitioners whose petitions should be sent to the Vermont Service Center, L-1 Canadian citizens can file their petitions upon admission to the U.S., TN NAFTA category individuals file their petitions with the Nebraska Service Center, and those seeking E-1 or E-2 visas will file with the Texas Service Center or the California Service Center. After the acceptance, the USCIS will send the employer a Notice of Approval (form I-797). This form does not guarantee that a visa will be issued to the employee.
Employees currently outside the U.S. will file petitions in an American consulate abroad. Notice of Approval will be sent to the consulate or the Port of Entry in the U.S. If the employee is changing his status while in the U.S., he does not require a visa, but if the employee leaves the U.S., he will need to get a passport visa through his home country American consulate.
TIME LIMITS
The E-1 and E-2 visas are issued for two years, with a two year extension, generally without limitation on extensions. The H-1B1 or H-1B2 visas are issued for three years and may be extended for a total of 6 years, with certain exceptions. The H-1C is granted for up to 3 years and can not be extended. The H-2A and H-2B are valid based on the Labor Department certificate date but no more than one year. They may be extended by a year for a maximum stay amount of three years. The H-3 visa is issued for up to 18 months. Other practical training- up to 2 years. L-1A / L-1B either 3 years or 1 year. Maximum stay is 7 years for L-1A and 5 years for L-1B. O-1 and O-2 are issued for up to 3 years. The O visa may be extended for up to one year. P-1, P-2, P-3 are issued individually up to 5 years (with maximum stay limited to 10 years), but groups of athletes and artists are limited to one year with one year extension. Q-1 visas are limited to the maximum stay amount of 15 months. R-1 and R-2 are limited to 3 years with a possible two year extension, for a maximum period of 5 years.
H TYPE VISAS
The H visas are issued to certain individuals who seek temporary employment in the U.S. Seeking to stay in the U.S. will likely lead to a denial of the visa. The H category includes H-1B (professionals and other qualified workers); H-1C (nurses); H-2A (temporary farm workers); H-2B (other non-farm unskilled workers); H-3 (Special Education Visitor); H-3 (Trainee and Special Education Exchange Visitor).
Most often, employees qualify for an H-1B visa. Such visa allows employment for the sponsoring employer anywhere in the U.S., return to the U.S. upon leaving, and the ability to bring spouse and children to the U.S. However, an H-1B holder must work for the sponsoring employer and the accompanying persons may not work in the U.S. The H-1B visas are capped at 65,000 per year. In order to have a chance at receiving such a visa, one must file his application as close as possible to the April 1 date. In 2007, the cap was reached in the first or second day the USCIS started accepting applications. International students in American universities with master’s or doctorate degrees have an additional 20,000 visas reserved, as an exemption from the 65,000 cap.
Persons with various specialty occupations categories may apply for an H-1B visa. According to the USCIS, 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. Note, however, that doctors, in addition to having completed medical school, should pass a TOEFL exam and other accreditation exams such as FLEX, NBME, USMLE. Medical H-1B applicants may not qualify for some medical field jobs.
The Marzec Law Firm assists clients in H-1B and other visa applications. Please contact us today for a consultation.
MARZEC LAW FIRM
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