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SPECIALTY OCCUPATION

A Specialty Occupation is defined as one that requires both a theoretical and practical application of a body of highly specialized knowledge and requires the person to have attained a Bachelor's degree or higher (or equivalent) OR the work is so complex and specialized that one can assume the knowledge needed to execute the job position that a degree is required.

TECHNICAL REQUIREMENTS

There are several technical requirements to an H-1B visa case. An LCA (Labor Condition Application) must be prepared and a wage survey must be completed. The government has set guidelines as to how much you should be paid, and each job title is dependent on the particular county in which you will work.

The LCA demands that an employer pay you at least what other people in a similar position are being paid. If your employer is highly dependent on H-1B’s or is a willful violator, he or she or it must follow a different set of requirements when the LCA is filed. The amount you make is classified as wages in that they are labeled ‘earnings’ for income tax and FICA (Federal Insurance Contribution Act=Unemployment Insurance). Fringe benefits are not included within the wage rate. Also there cannot be a strike or lockout in progress, and this is attested to in the LCA.

A final important issue is that the employer must have a Federal Tax Identification number, which is basically a Social Security number for a business, in order to file. If your employer is a small or new business, you need to advise them to obtain this number as soon as possible; sometime they are able to get this number over the phone.

RESPONSIBILITY OF THE EMPLOYER

The employer has the responsibility to pay the costs of sending an employee home if that employee is let go. The employer must also pay the H-1 employee his or her wages within 30 days of when the person has entered the United States or 60 days from when the peson files a Change of Status application. A Change of Status is what is filed if a person is in the US on a different visa.

CAP-GAP AND THE H-1B

If you apply for the H-1 visa and are approved, you may still have to leave the country. The way this works is that if your visa, for example, expires on July 14th as a visitor, even if you are approved to work on October 1st, you will caught in this Gap...called the cap-gap because it is a gap of time between  the time the cap is reached and the time your status expires.

CAP-GAP AND STUDENT VISAS

Students will not suffer being out of status when their F-1 stay expires, nor will F-2 visa holders. Not only will the stay of the student be extended, so will the person's work authorization. The student does not have to be in OPT status for this to occur. OPT is Optional Practical Training, the period during which a student is able to work. The person's status is extended to October 1st.

If the applicant has a criminal record, a waiver may have to be filed: Click here for more information

EMPLOYER CAN BE SOLE PROPRIETOR, CORPORATION, LLC, OR PARTNERSHIP

A lot of people think that only corporations can hire them, but that is not the case.

EMPLOYER MUST BE US COMPANY

The employer for an H-1 visa must be a US company, even if the salary is paid from abroad.

PERMANENT POSITION
TEMPORARILY FILLED

An H-1B visa is very different from the H-2 visa, although they are both popular work visas. The H-2 visa is primarily used for people without a degree, The H-2 is for filling a temporary need whereas the H-1 visa is for temporarily filling a need for a permanent positiion.

WHAT TYPE OF POSITION CAN IT BE?

There are numerous positions that have been permitted and many other positions have cases to support them. This list is so large that it cannot possibly be reproduced here, but here are some of the most common positions that people ask about and are included:

Acupuncturist; Chiropractor; Dietician; Graphic Designer; Human Resource Manager, Industrial Engineer, Interior Designer; Journalist; and Medical Technologist. The standards do, of course, apply to positions such as teachers, lawyers, accountants, and engineers. Know though, that in some of these positions, you are required to be licensed in the specific state or area you are in, and that must be followed.

If you have a position, and are seeking a law firm to represent you, call now for a free consultation and if you are a student, ask for your student discount! Toll-free 877-223-4684 and from outside the United States 214-764-3462.

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FOR MORE  IMMIGRATION INFORMATION visit our BLOG . If you are new to the USA, we created an information site for you; it explains everything from getting a mortgage to having fun in the U.S. and how/where it's done. Finally, if you really want to understand immigration law, our DVD, US-Immigration-Explained covers every single visa and Green Card in easy language. If you purchase is and hire a lawyer from the referral site, you receive a full refund for the $97 DVD. Thank you for visiting our web site and we look forward to welcoming you as a client soon.