Are H 1B holders considered foreign nationals

H-1B

AWhat is H-1B?

The H-1B visa is a non-immigrant visa that enables U.S. employers to hire and temporarily employ foreign professional workers in specialty occupations. Other non-immigrant work visas include TN, O-1, E-2, L-1, P-1 visa, etc. H-1B visa holders may legally live and work inside the United States for a duration of 6 years.

To apply for H-1B visas, foreign nationals must possess at least a bachelor’s degree or its equivalent. In many cases, this requirement can be satisfied by having a three-year degree in addition to three years of relevant post-graduate work experience.

Not necessarily any profession qualifies for an H-1B. A foreign worker must be in a “specialty” occupation. Qualifying occupations are those requiring highly specialized and technical knowledge in fields including, but not limited to:

Law

Accounting

Architecture

Biotechnology

Computing

Engineering

Education

Finance

Healthcare and medicine

Information technology

Marketing

Mathematics

Telecommunications

The arts

The physical and social sciences

There are many qualified positions, not just those listed above. Although there has been no change in the law in recent years, the requirements of USCIS are becoming increasingly stringent. Some majors were previously recognized as Specialty Occupation. Now they are not considered to meet H-1B visa requirements. See H-1B case analysis.For example, Undergraduate majors of marketing managers do not necessarily study marketing, and CEOs can also be selected from all fields. Therefore, USCIS often denies H-1B applications for management. USCIS also denies H-1B applications that do not require professionals.

BThe types of H-1B

1.Capped H-1Bs

The H1B quota or H1B cap is a numerical limit placed on the number of foreign workers authorized to work in the United States annually under H1B status. Created under the immigration act of 1990 and initiated on October 1,1991, it reached its maximum count of 65,000. Later, this was increased twice: to 115,000 for 1999–2000 and to 195,000 for 2001–2003. In 2004, the H-1B cap was reverted to 65,000 visas and 20,000 were added for applicants with U.S. postgraduate degrees .

Congress has authorized a maximum number of 65,000 H-1B visas to be issued annually, plus an additional 20,000 per year for H-1B beneficiaries with at least a master’s degree from a U.S. college or university or its foreign equivalent.

2. Cap-exempted H-1B

It does not have quotas or annual restrictions. It is very popular. Applicants can apply for it at any time of the year. However, certain criteria must be met.

a) H-1B1:The H-1B1 is a subcategory of the H-1B visa designated for workers in specialty occupations,” with no quotes around specialty occupations from Chile and Singapore.

b) H-1B2:The H-1B2 visa is intended for aliens who perform services of an exceptional nature relating to a cooperative research and development project administered by the United States Department of Defense (DoD).

c) H-1B3:The H-1B3 is a subcategory of the H-1B visa program designed for nationally or internationally recognized fashion models.  For more information, please click: (5.3)

CCharacteristics of H-1B

specialty occupation
It requires theoretical knowledge and practical application ability for a particular specialty.

educational requirements
1) A Bachelor’s degree or Masters Degree (or the foreign equivalent degree from your Country, please see degree evaluation), OR
2) 12 years work experience , OR
3) A mix of further education + work experience

USCIS generally considers three years of professional experience the equivalent of one year of college education.

If you do not complete four years of undergraduate education, you can also meet this requirement by having years of work experience in a particular field or a license in a professional field.

Wage Standards
Employers need to file LCA (Labor Conditions Application) to the U.S. Department of Labor to ensure that the employers (U.S. Petitioner 5.5)pay the same prevailing wage indicated to foreign workers(U.S. Beneficiary 5.6), offer the same benefits to H-1B visa holders as other employees.

Limits
Capped H-1BsCongress has authorized a maximum number of 65,000 H-1B visas to be issued annually, plus an additional 20,000 per year for H-1B beneficiaries with at least a master’s degree from a U.S. college or university or its foreign equivalent. (6800 visas for Chile and Singapore.)
Cap-exempted H-1Bs: No limits

Change the job
After voluntary resignation or voluntary resignation, H-1B holders have three choices:
1) Apply for another non-immigrant visa ( change of Status 5.7)
2) Find the next employer to apply for H-1B within 60 days after leaving the company
3) Leave the United States

Please note that once the H-1B employee’s work terminates (voluntarily or involuntarily), his/her H-1B status expires. That is to say, if you lose your job, you lose your legal status.

For more questions, please click here.

Dependents of H-1B workers
Spouses and unmarried children under the age of 21 are considered dependents of H-1B workers. They can apply for H-4(5.7)
This classification permits “coextensive” stay, which is legalese for permission to enter and remain in the U.S. for as long as the H-1B visa holder has valid status.
H-4 holders can attend school, whether on a part-time or full-time basis. They aren’t allowed to work, unless they can obtain employment authorization from USCIS.

Dismissal and resignation:
Dismissal: If an employer (U.S. Petitioner 5.5) fires a foreign employee (U.S. Beneficiary 5.6) before his or her H-1B status expires, the employer will have to bear the cost of return air tickets for employees returning to their original (overseas) country of residence.
Resignation: If the H-1B status of a foreign employee (U.S. Beneficiary 5.6) leaves automatically before his or her H-1B status expires, the  employer does not have to pay any return tickets fees.

Green card application after obtaining H-1B:
The first method:  Employer-sponsored green card process
The second method: Self-petition   Please see EB-1A , EB-2 NIW.

Employer-sponsored green card process
Step 1: Find an employer willing to sponsor your green card and offer you a position that meets EB-2/EB-3 PERM. This can be your H-1B employer or any other employer.
Step 2: PERM (an ETA 9089 form must be filed.)
Step 3: File I-140 petition
Step 4: Once USCIS receives your application, that date is your priority date. Before entering the final step, you need to wait until your priority date changes to the current date
Step 5: Submit I-485 status after the visa is available. After the interview, USCIS will automatically make the green card and mail it to the applicant. The applicant will become a permanent resident of the United States on the date of approval.