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H1-B visas for professionals and college graduates

By Atty. Kenneth Reyes

Most aliens that come to the United States do so under a B-1 or B-2 visa as a visitor which gives visitors up to 6 months stay in the US. However due to the recent policy of disfavoring extensions of visitors status, extending once visitors visa is almost no longer an option for a lot of aliens seeking to reside in the US permanently. For aliens that do not have any immediate relatives that are LPR’s or US Citizen, it takes years to obtain a green card through employment unless of course you’re a nurse or physical therapist. In the meantime, it is necessary to maintain status in this country.

The best route for most aliens with a college degree is to change to an H-1B status. This would entail obtaining an employer who is willing to petition you to obtain this temporary working status. To increase chances of approval, the employer should generate sufficient net income to pay your wages and have a reasonable amount of employees.

The position to be offered should be one that requires a bachelor’s degree as a minimum qualification. The position should also be a specialty occupation generally jobs that are technical in nature such as engineers, systems analyst, architects, etc. The employer should offer wages that pays at least the prevailing wage for that position.

Once approved, the alien will be given an H-1B status of 3 years or the period of employment, whichever is shorter. The alien’s status may be extended for another 3 years to a maximum of 6 years under H-1B status.

The alien also should look at the timing in obtaining the H-1b which is released every October 1 because the alien, if inside the United States, has to maintain legal status until October 1 even if the employer files the Petition prior to that date. Another issue is the H-1b cap which has not filled up as fast as it used to prior to the recession. However, once the cap is filled, the beneficiary would have to wait until the following October 1 to receive the status. In the meantime, the beneficiary would run out of their visitor’s status. It is important for the alien to maintain status both at the date of filing the H-1B, which begins every April 1, until the October 1 (earliest date new H-1B visas are issued).

Timing is the most important issue an alien should consider. Aliens entering the US between April to July and who are given at least 6 months visitors status stand a good chance of being able to switch to H-1B status once they are able to obtain an employer to petition them.

The H-1B visa only authorizes the alien to work for the Petitioning employer. If the employee later desires to obtain a second job or wishes to switch employers, then a new H-1B petition would be required. It is possible to work part time under an H-1B visa but such work schedule must be disclosed in the Petition. Aliens currently on an H-1B that wisher to change employers may do so without being subject to the cap. Current H-1B holders may also us the H-1B portability provision to begin working for the new employer prior to the approval of the new H-1B provided the new petition has been filed with the USCIS and the period of employment indicated has commenced.

Information that are generally required from the employer are basic information about their business, tax identification number, number of employees, gross and net income, and detail explanation of their business.Information and documents needed from the employee/beneficiary are their credentials. College transcripts, Educational Evaluation, Resume, Certificate of Experience from past employers, professional licences, post graduate degree if applicable. If you are seeking to change your status to an H-1B, it is best to seek the assistance of an experienced attorney.

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Attorney Kenneth Ursua Reyes was President of the Philippine American Bar Association for 2005. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. He is a graduate of Southwestern University Law School in Los Angeles and California State University, San Bernardino School of Business Administration. He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 700, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail kureyeslaw@aol.com.

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