Excerpts from
U.S. Immigration & Citizenship
Your Complete Guide

Excerpt from Chapter 14, H-1B and TN Status for Temporary Professional Workers

In this chapter, I discuss both H-1B status and TN status. Both H-1B status and TN status are available to temporary workers in professional positions. TN status is available only to Canadians and Mexicans under the NAFTA treaty. Unlike most permanent employment visas, you can get H-1B or TN status even if many U.S. workers can do the job. In part I of this chapter, I explain the rules that apply to H-1B status. In part II, I provide detailed procedural information on getting H-1B status.

Part I: Rules for H-1B Status and TN Status- Introduction

You can get H-1B status if you have a four-year college degree or the equivalent in education and experience. You may have obtained your education and experience either here or abroad. If the job has a license requirement, you must have that license, unless the only bar to getting a license is getting a social security card.

If you have been in the United States illegally, you still might get H-1B status, although you may have to leave the country and get a visa before you can work here. You can even get H-1B status if you have started a permanent residence case, a rule that makes the H-1B different from many nonimmigrant classifications.

You can't petition for yourself for H-1B status; your employer must petition for you. The employer must offer you a position where your degree is necessary to do the job. An H-1B employer can be an individual, a partnership, or a corporation. Even if you are the sole owner of a corporation, that corporation may petition for you.

To get H-1B status, your employer must pay you the prevailing wage for the position or the wage paid to workers in similar positions in the company (called the actual wage), whichever is greater. Employers must also offer H-1B workers the same benefits they offer other workers. These benefits include health, life, disability, and other insurance plans, retirement and savings plans, bonuses, and stock options.

The USCIS will approve an H-1B petition in intervals of up to three years at a time, up to a maximum of six years. Then, in limited circumstances (discussed later), the USCIS may extend your H-1B status beyond six years in one-year intervals.

TN status allows Canadian professionals to work here without the employer first getting a petition approved by the USCIS. Mexican nationals need an approved petition. The main benefit of Canadian and Mexican TN status is that some workers without a four-year college degree or the equivalent may qualify. For more on TN status, see the section "TN Status for Canadian and Mexican Nationals" later in this chapter.

You Don't Have to Be Special, Just Qualified

U.S. immigration law calls H-1B jobs specialty occupations. But you don't have to be "special" to get H-1B status-you just have to have a four-year degree or the equivalent and a job offer that requires a degree in your specific field. And, unlike most immigrant (permanent) employment-based visa applications, your employer need not prove that no U.S. workers are ready, willing, and able to do your job. Even if hundreds of U.S. workers qualify for the position, your employer can choose you for the job and petition for you for H-1B status. James's story illustrates how a person with the minimum qualifications can get H-1B status despite there being qualified and lawful U.S. worker applicants for the position.

James's Story

James, from England, managed to get a degree in business management from the University of California at Los Angeles, but just barely. He spent most of his time in college going to parties. As a result, his grades suffered. He did graduate, but he was near the bottom of his class. James had difficulty getting a job offer after graduation. Finally, through a friend of his uncle, he found a position as a junior hotel executive. The job required a college degree in business administration or hotel management but did not require experience. Although the employer had not been advertising, he routinely got 30 to 40 letters per week from qualified applicants looking for a position. Nevertheless, because the employer was a friend of James's uncle, he offered James the position and petitioned for him for H-1B status. James applied to change from F-1 to H-1B status and was successful. That's despite the large number of qualified workers applying for the position. The USCIS approved his change of status for a period of three years.

The Degree Requirement

A key element in getting H-1B status is proving that the job the employer offers you customarily requires a relevant four-year college degree as a condition of employment. Even if you have a degree, you cannot get an H-1B visa if your degree isn't typically required for the job. Some professional positions almost always require a bachelor's degree or higher. Examples are schoolteacher, college or university professor, engineer, and architect. Some positions are not so obvious. The position of manager of a small shoe store would not normally require a specific bachelor's degree. You would have great difficulty getting H-1B status to be a shoe store manager. The position of accountant, on the other hand, would usually require a degree in accounting and would support an application for H-1B status. Take the example of a small manufacturing company that employs a secretary, a sales representative, a buyer, a manager, and an engineer. The secretary would probably not be considered to be in a specialty occupation. The position rarely requires a four-year degree. The sales representative and buyer might be considered professionals, but only if the buying and selling require expertise normally acquired through a college education. An example would be a job selling or buying engineering products or chemicals. The position of manager may or may not be a specialty occupation. If the manager must understand finance or law, and the volume of business justifies the manager spending most of his or her time using this knowledge, this may be an H-1B position. The manager's job will be considered a specialty occupation if the job requires special knowledge normally acquired through a college education. If the manager's job generally requires less than a college degree, the position will not be considered a specialty occupation. The position of engineer is usually considered a specialty occupation, since to be an engineer, you usually need a four-year college degree in engineering. The stories of Tommy, Mary, and Carson illustrate the importance of showing the relationship between an H-1B applicant's education and the job duties.

Tommy's Story

Tommy, from Thailand, had studied engineering in his country and wanted to come to the United States to work as an engineer. He had his school records evaluated by a professional academic evaluation service in the United States. The service reported that, indeed, his education was the equivalent of a U.S. bachelor of science degree in engineering. Though he had no work experience, a recruiter from Silicon Valley Engineering Associates, a U.S. company, offered him a job as an engineer.

Tommy's is an easy H-1B case. A degree in engineering is a customary degree for a position as an engineer.

Mary's Story

Mary, from Ethiopia, received a bachelor's degree in political science from a university in her country. Her concentration was in international relations. While in New York on holiday, she began looking for a job that would qualify her for H-1B status based on her new degree. She looked for teaching jobs in a variety of subjects, including social science in a high school and history and political science in colleges. She even tried to get a job teaching in a private elementary school. She also looked for a job as a researcher in the field of government or political science. Finally, she obtained a job as an editor for a publication that wrote and distributed high school textbooks about the United Nations and international relations.

While Mary had no experience in this area, her bachelor's degree in political science and the fact that she took several courses in international relations qualified her for the position. Her employer explained in a letter to the USCIS that Mary was doing more than just correcting grammar and spelling. She was editing the text for factual accuracy. Her job also required research on world history and government. The USCIS decided that her degree qualified her for the position of editor.

Carson's Story

Carson received his degree in anthropology, studying at City College in New York City in F-1 international student status. His best friend, John, a U.S. citizen, introduced Carson to John's father, John Sr., a frozen food manufacturer and distributor. John Sr. was planning to begin a major campaign to develop, market, and distribute frozen foods worldwide. His thought was to develop special products and special marketing efforts for each country in the market. Though Carson had never studied business, let alone marketing, he was trained in researching and analyzing national and regional cultures. John Sr. felt these skills would be useful to his marketing efforts, and so he sponsored Carson for H-1B status. Though at first the USCIS questioned whether Carson's education qualified him for the job, eventually the USCIS approved the petition. The USCIS had inquired about Carson's qualifications, so John Sr. submitted letters from an anthropology professor and a business school professor confirming the important role played by anthropologists in modern product development and marketing strategies.


*Copyright©1997 by Allan Wernick, from the book U.S. Immigration and Citizenship, Prima Publishing, Rocklin, CA, Order at better bookstores or call (800) 632-8676.