There are several criteria that must be met in order to use the (H-1B)
status (visa) in the US
The H-1B is available for use for those falling with the occupations of:
1. specialty occupation
2. fashion model of distinguished merit and ability, or
3. persons providing services related to Department of Defense cooperative
research and development project or co-production project.
The H-1B employee must be coming temporarily to the U.S. However, the approval
of a Labor Certification Application (LCA or PERM) or the filing of permanent
resident visa petition does not preclude an H-1B petition or extension.
A concept of "Dual Intent" has developed and is now permitted.
In brief "dual intent" means a non-immigrant H-1B may have the
non-immigrant intent to remain temporarily in the US OR have immigrant
intent to remain permanently in the US concurrently. For most non-immigrant
status an intent to remain permanently in the may be consider a violation
of the non-immigrant status.
Since an H-1B is permitted dual intent maintain a foreign residence is
not necessary for the H-1B foreign national. Both the Department of State
and the Citizenship and Immigration Service share this position and facts
relating to a foreign residence and immigrant intent are not considered
in making decisions on H-1B petitions.
As a part of the H-1B petition process a Labor Condition Application (LCA)
must be obtained from the Department of Labor in the occupational specialty.
The requirement applies to all H-1Bs including fashion models and physicians,
but not to the person providing service related to Department of Defense
cooperative research and development project or co-production project.
LCAs are also required for H-1B1's and E-3's. There are special
attestation requirements for employers who previously committed willful
violations of the law or for employers who are deemed to be H-1B dependent.