H VISAS
There are five categories of H visas:
1. H-1B: Specialty occupation.
2. H-1C: Professional Nurses Working in Health Professional Shortage Areas (HPSAs).
3. H-2A: Temporary agricultural workers.
4. H-2B: Temporary non-agricultural workers.
5. H-3: Trainees other than medical or academic. This classification also applies to practical training in the education of handicapped children.
6. H-4: Accompanying family members (spouse/children).
1. H-1B: Specialty occupation.
An H-1B is an alien coming temporarily to perform services in a specialty occupation.
A specialty occupation is one that requires the theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation and requires the attainment of a Bachelor’s or higher degree in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.
The petition must be filed by the US employer and must be filed with:
1. Evidence that a labor condition application has been filed with the US Department of Labor;
2. Evidence showing that the proposed employment qualifies as a specialty occupation;
3. Evidence showing that the alien has the required degree by submitting either:
a. A copy of the person’s US baccalaureate of higher degree as required by the specialty occupation;
b. A copy of a foreign degree and evidence that it is equivalent to the US degree; or
c. Evidence of education and experience that is equivalent to the required US degree.
4. A copy of any required license or other official permission to practice the occupation in the State of intended employment; and
5. A copy of any written contract between you and the alien or a summary of the terms of the oral agreement under which the alien will be employed.
2. H-1C: Professional Nurses Working in Health Professional Shortage Areas (HPSAs).
The classification applies to:
1. a person who is coming temporary to perform services as a registered nurse;
2. meets the requirements of INA 212(m)(1);
3. will perform services at a facility described in INA 212(m)(6) for which there is an unexpired attestation on file. 8 CFR 214.2(h)(1)(ii)(A).
A registered nurse is defined as a person who is or will be authorized by a State Board of Nursing to engage in registered nurse practice in a state or US territory or possession and who is or will be practicing at a facility which provides health care services. 8 CFR 214.2(h)(3)(i)(A).
Law requires nurse to have:
1. An unrestricted license in home country or be educated in the US;
2. A license in the state of intended employment or pass an exam authorized by HHS;
3. Proof that he is fully qualified and eligible to practice in state of intended employment as RN upon admission.
There is an attestation requirement for the hospital in the HPSA area that is valid for one year from the date of filing.
3. H-2A: Temporary agricultural workers.
H-2 category is divided between temporary workers performing “agricultural labor or services … of a temporary or seasonal nature,” INA §101(a)(15)(H)(ii)(a), and temporary workers performing “other temporary services or labor.” INA §101(a)(15)(H)(ii)(b).
Under the H-2A program there is a 50% rule which requires employers to hire qualified U.S. farmworkers who apply for the job until 50% of the period of the fees or contract has been completed. 55 Fed. Reg. 29,356 (July 19, 1990).
4. H-2B: Temporary non-agricultural workers.
To qualify for H-2B:
1. Applicant must be coming temporarily to U.S.
a. To determine whether job is temporary INS does not look to the nature of the duties, but rather, to the nature of the employer’s need. 8 CFR §214.2(h)(6)(ii)(B). under INS regulations, employer must demonstrate that the request for labor is one time occurrence, a seasonal need, a peakload need or an intermittent need.
2. Applicant must be performing temporary services/labor.
3. Employer must demonstrate that no U.S. workers capable of performing such service/labor are available in U.S. Employer must engage in serious recruitment including use of electronic data banks. Memo No. 17-97, Farmer, Admin. for Regional Management (Jan. 6, 1997), reprinted in 74 Interpreter Releases 835-37 (May 19, 1997).
4. Must get temporary labor certification demonstrating that:
a. No USC/LPR workers are available for position.
b. Employment of aliens will not adversely affect wage rate and working conditions of similarly employed workers in the U.S. 8 CFR §§214.2(h)(5)(i), (6)(iv)(A)(1).
c. Meet guidelines of Dept. of Labor [Field Memo No. 207.71] for H-2Bs:
i. Is job in employer’s regular business; duties/equipment similar to regular work?
ii. Is time period for visa reasonable?
iii. Are the number of aliens requested reasonable for job?
iv. Does employer frequently request H-2s?
v. Are there any alternatives?
5. Not available for doctors.
5. H-3: Trainees other than medical or academic. This classification also applies to practical training in the education of handicapped children.
Definition. Temporary worker invited by an individual or organization for purposes of receiving instruction and training other than to receive graduate medical education or training. The training program must be one “that is not designed primarily to provide productive employment.”
1. Must have foreign residence to which he must return.
2. Regulatory criteria for H-3 are: 8 CFR §214.2(h)(7)(ii)(A):
a. Proposed training not available in alien’s home country;
b. Beneficiary will not be placed in a position in which citizen and resident workers are regularly employed;
c. No productive employment unless it is incidental and necessary to the training and pursuing a career outside the U.S.
d. The training will benefit the beneficiary in pursuing a career outside the U.S.
3. However, if the program has any of the following flaws it is unacceptable:
a. Deals in generalities with no fixed schedule, objectives or means of evaluation;
b. Is incompatible with the nature of the petitioner’s business or enterprise;
c. Is on behalf of a beneficiary who already possesses substantial training and expertise in the proposed field of training;
d. In a field in which it is unlikely that the knowledge or skill will be used outside the U.S.;
e. Will result in productive employment beyond that which is incidental and necessary to the training;
f. Is designed to recruit and train aliens for the ultimate staffing of domestic operations in the U.S.;
g. Does not establish that the petitioner has the physical plant and sufficiently trained manpower to provide the training specified; or
h. Is designed to extend the total allowable period of practical training previously authorized a nonimmigrant student.
4. The training program by regulation [8 CFR §214.2(h)(7)(ii)(B)] should include:
a. Kind of training to be given.
b. The proportion of time that will be devoted to productive employment. Productive employment should be minimal because alien should be receiving training and not performing productive work that displaces USCs/LPRs.
c. Number of classroom instruction hours. This should be as high as possible to show that petition is not really to work but to train.
d. Number of hours of on-the-job training both supervised and unsupervised. Unsupervised work should be minimal. Supervised work should always be oriented toward training.
e. The position and duties for which the training will prepare the alien. Must be preparing someone for the type of work that is not available or is new in country where they will work, e.g., IBM develops new software which is unknown in another country but which they will market there. IBM can petition to train people to use that software so that they can use it when the software is sold in their home country.
f. The reason why the alien cannot obtain the training in the country of origin and why the training must be given here. Must show that this type of program does not exist in alien’s country of origin, that it is unique to the degree that it does exist in the U.S. and that it is not readily available in any other country.
g. The reason why a training program is a benefit to the petitioning company willing to hire the trainee.
h. The source of remuneration received by the trainee.
5. Admission and Extension:
a. Admitted for length of training program, but in no event longer than 2 years. No extension, COS or readmission granted after the 2 years unless alien resided and physically present out of the U.S. for 6 months. If training is seasonal, intermittent or less than 6 months this rule does not apply.
b. The approval of a permanent labor certification or the filing of a preference petition by the same employer for the same or a different job is grounds to deny extension of training program.
6. H-4: Accompanying family members (spouse/children).
USCIS allows immediate family members of H visa holders (H-1A, H-1B, H-2A, H-2B, or H-3) to get H-4 visas to lawfully come and stay in the US. These visas are usually issued at the local US consulate office abroad. However, if the person is already in US, he or she can obtain H-4 visa by filing Form I-539 for change of status.
H-4 visa holders are not eligible to get a Social Security Number and cannot be employed, but they can hold a driver's license, open bank accounts, and get an Individual Taxpayer Identification Number for US tax purposes.
Since H-4 visa holders are not issued a social security number, an ITIN (Individual tax identification number) should be obtained before filing for joint tax returns by filing Form W-7.
