Florida Immigration Attorneys

H-1B Criteria

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.

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