There are several H-1 categories but the most important for the Businessman is H-1B for persons qualified to perform services in "specialty occupations" This usually means having a degree or "equivalent experience"

The two questions to ask of a position being offered to a foreign national are:

  • does the position require the services of someone in a specialty occupation
  • does the individual meet those requirements

A specialty occupation is one that requires (a) theoretical and practical application of a body of highly specialized knowledge and (b) attainment of a bachelor's or higher degree in the specific specialty ( or its equivalent) as a minimum for entry into the occupation in the United States

Requirements for performing in the specialty occupation:

  • Full state licensure if required for practice in the US
  • Completion of a US bachelors or higher degree ( or its foreign equivalent) in the specific specialty as a minimum for entry into the occupation in the US or
  • Education, training or experience in the specialty equivalent to the completion of such degree and recognition in the specialty through progressively responsible positions directly related to the specialty

One must first obtain permission from the Department of Labor (DOL) by filing a Labor Condition application. The main purpose of this is to ensure that the employer is paying wages/salary equivalent to what one would pay a US worker.

Then one has to file with the Immigration and Naturalization Service (INS) documenting the suitability of the position and the applicants qualifications for the job.

Processing then takes place at the appropriate home country Consulate.

A proposed change in employers or a material change in employment necessitates the filing of a new or amended petition

Initial admission is for a period of three years with an extension of up to another three years. One is eligible for a new H-1B petition by living outside the US for at least one year

Caution: there is an annual cap on the number of H-1b non-immigrant visas issued in a fiscal year i.e. 65,000. This was recently reached and it may be that applications filed towards the end of the fiscal year (Oct - Sept) will be subject to delay.

Dual Intent

The above refers to the concept of using a non-immigrant visa to facilitate permanent entry to the United States and is an offence with most visas.

However both H-1B and L-1 were exempted from this doctrine and it is not an offence to obtain these visas and also by other actions e.g. filing for an immigrant visa, to indicate that your real aim is permanent settlement in the US.