Publications

February, 2009

SPECIALTY OCCUPATION H-1

The H-1 visas per year are capped now at 65,000; an additional 20,000 are available to candidates who have a master’s degree or higher. The quota is so tight that on the first day to apply, April 1st, 2009, the quota is filled on that day. The available visas for applicants who have master’s degree or greater usually close within one to two weeks of April 1st. The H-1B visas do not take effect until October 1, 2009. Medical Doctors upon the request of a federal or State agency may apply to be cap exempt. Also, H-1B applicants who will be employed by a non-profit research hospital can be cap exempt as well.

The H-1B is a person in a specialty occupation, coming temporarily to the U.S. but the applicant need not have a foreign address. A labor condition application is required to show that the applicant will not be paid at less than the prevailing wage in his/her occupation and the area where he/she would work.

If an applicant has already been admitted as an H-1B, a new petition filed by a new employer may be filed, provided the H-1B applicant is still in lawful status. The applicant may then work for the new employer without waiting for the application to be approved.

For an H-1B, a baccalaureate or higher degree is required. The job must be shown to require knowledge, both theoretical and applied, which normally may only be acquired in an institution of higher learning. The job must be shown to require a university degree or its equivalent. Experience alone may be sufficient if an equivalency agency accredited to the Immigration Service assessed that the experience and training of the applicant is equal to a college degree: three years of experience maybe considered the equivalent of one year of college if the experience has been shown to have required increasing responsibility in the position or professional recognition in the field.

An H-1B petition is initially approved for three years. The maximum extension is another three more years, an aggregate of six. So that the applicant can take full advantage of the six years, time spent abroad during this period may be subtracted from the six years. Spouses and dependent children are also entitled to the same time periods. An H-1B may extend beyond the six years if a labor certification for permanent residence or a preference petition has been filed and 365 days or more have elapsed since the filing of the labor certification or the filing of the preference petition. Then the H-1B may be extended in one year increments until permanent residence is granted or denied.

NURSES:
A nurse may qualify under H-1B if it’s a specialty occupation and he/she has a University degree or its equivalent. The NCLEX-RN exam and State licensing are required. Also nurses who are certified as advanced practice system nurses (APRN) where the employer requires this certification are also eligible. In this category clinical nursing specialties such as acute care, pediatrics, psychiatric, dialysis, gynecological etc. are included. TN-1 nurses from Canada and Mexico may be admitted without being under the H-1 quota or time limitation.

PHYSICIANS:
A physician can now obtain an H-1B visa. The prospective physician must pass the licensing exams administered by the Federal or State Medical Boards and also the Flex, Parts 1 & 2 for the U.S. Medical Licensing Examination, steps 1, 2 & 3. Oral and written English is necessary for approval, shown by passing the ECFMG exam and proof of graduation of a medical college or a license in a foreign state. For clinical care a medical license is required for where the doctor will be working. A doctor in a residency program may also qualify for an H-1B.

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New York Immigration Lawyers > Immigration Publications > February 2009