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미국전문인단기취업비자(H1B)
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Temporary Registered Nurses: H-1A Visas
A. How to Qualify
B. Attestation Requirement for Employers
C. Obtaining an H-1A Visa
D. Who's Who in Getting Your H-1A Visa
E. Step One: The Petition
F. Step Two: The Application (Consular Filing)
G. Step Two: The Application (U.S. Filing)
H. Extensions
Privileges
. You can work legally in the U.S. for your H-1A sponsor . H-1A visas can be issued quickly in most countries. . You may travel in and out of the U.S. or remain there continuously until your H-1A status expires . Visas are available for accompanying relatives.
Limitations
. You are restricted to working only for the employer who acted as your H-1A visa sponsor. If you wish to change jobs, you must get a new H-1A visa. . You cannot get an H-1A visa for part-time employment.
. Employers must havean attestation on file with the U.S. Department of labor before they can sponsor you for an H-1A visa. . H-1A visas can be held for no more than six years. Then you must return to your home country unless you have acquired a green card. . Accompanying relatives may stay in the U.S. with you, but they may net work
A. How to Qualify
There are no quota restrictions for H-1A visas. The attestation takes up to 30 days for acceptance. Step One petitions are normally approved within three to eight weeks. Visas are usually issued within several weeks after petition approval. H-1A visas are temporary work visas available only to registered nurses. To qualify, you must satisfy three conditions: . you must be a registered nurse who is either licensed in the U.S. state of intended employment or has passed the Commission on Graduates of Foreign Nursing Schools (CGFNS) examination . you must have a full-time job offer as a registered nurse from a U.S. employer for work to be performed in the U.S., and . your U.S. employer must hove an attestation on file with the U.S. Department of Labor (DOL),
1. Registered Nurse
Only registered nurses qualify for H-1A visas. Licensed practical nurses (LPN's) and nurses aides do not. You must be either fully licensed to practice nursing in the U.S. state where you will be working, or you must have passed the CGFNS exam. You must meet all requirements under the law in your state of intended employment to engage in nursing immediately upon entry to the U.S., including having a emporary or interim license. If you received your nursing degree in a reentry other than the U.S. or Canada, you are also required to hold a current license in the country where you were educated as a nurse. Passing the examination given by the CGFNS is a substitute for a U.S. state nursing license. To take the exam, you must have graduated from both high school (or its equivalent) and an approved nursing school having at least a two-year program. The exam is given several times per year in nearly 40 different countries. For more information, contact:
Commission on Graduates of Foreign Nursing Schools
3600 Market Street, Suite 400
Philadelphia, PA 19104-2651
Telephone: 215-349-87672.
Job Offer Form an Employer for Work Performed Inside the U.S.
You need an offer ova specific job as a nurse from a U.S. employer for work to be performed inside the U.S. H-1A petitions are approved only for full-time jobs. You cannot get an H-1A visa for a part-time job. Many people are surprised to learn that they require an employment offer before applying for an H-1A visa. The idea behind it is that you are being granted the visa only because your services are essential to an American health care facility. Put another way, the U.S. government is issuing the visa not for your benefit, but to help the American medical community. For H-1A visas, the employer acts as petitioner. The petitioner may be a hospital or other organization providing health care services. Nursing contractors and private individuals who require full-time nurses In their homes may also act as petitioners.
3. Attestation on File
Any hospital or institution wishing to hire foreign nurses on H-1A visas must first comply with an annual attestation requirement to be filed with DOL. An attestation consists of sworn statements appearing on a special government form. These statements generally contain the employer's assurances that the particular hospital or other health care facility faces an immediate, critical nursing shortage which can be remedied by hiring foreign nurses. The facility must also swear that it is taking certain steps to reduce its reliance on foreign nurses in the future.
The employer files the attestation with the DOL central office in Washington, D.C. Documents proving that the statements are true must be maintained at the employer's facility and made available for public inspection on request. The documents themselves do not have to be submitted with the attestation.The Labor Department reviews each attestation for completeness and, if it is satisfied, will accept the attestation for filing. There is a 30-day period in which DOL must decide whether to accept or reject an attestation. If any RNs were laid off from the employer institution during the 12-month period be(ore filing, the attestation will be rejected. Once accepted, the attestation lasts for one year, after which it must be renewed. The employer may not file H-1A petitions until the attestation has been accepted. Employers with accepted attestations may file unlimited numbers of H-1A petitions.
4. Accompanying Relatives
When you qualify (or an H-1A visa, your spouse and unmarried children under age 21 can get H-4 visas simply by providing proof of their family relationship to you. H-4 visas authorize your family members to stay with you in the U.S., but not to work.
BENEFITS AND DRAWBACKS OF H-1A STATUS
Having an H-1A visa gives you no legal advantage in applying for a green card. Realistically, it is probably easier to get an employer to sponsor you for an H-1A visa than a green card, however, and coming to the U.S. first with an H-1A gives you the opportunity to decide if you realty want to live in the U.S. permanently. Once you are in the U.S. with a work permit, it is also usually easier to find an employer willing to sponsor you for a green card. If you have been in the U.S. since before September 1, 1989, you may Qualify for a special green card as a nurse. See Chapter 8, Section B5.
B. Attestation Requirement for Employers
To file an attestation, use form ETA-9029. The questions on this form are easy to understand. Mainly, the form consists of boxes to be checked indicating that the employer "attests" to the statement following the checked box. Sometimes extra explanations of certain actions must accompany the form. These are mentioned, as necessary, throughout the rest of this chapter. A copy of Form ETA-9029 may be found in Appendix III. It must be filled out in triplicate and mailed to:
U.S. Department of Labor
Chief, Division of Foreign Labor Certifications
U.S. Employment Service, ETA
200 Constitution Avenue, NW, Room N-4456
Washington, DC 02010
When the attestation is accepted, one of the original ETA-9029 forms will be returned to the employer with a DOL endorsement. A copy of the endorsed ETA-9029 must then be submitted to INS as a supporting Step One docu cent with all future H-1A petitions. Even though H-1A petitions are filed with INS, employers must also send copies of all petitions to DOL at the above address. Within the attestation itself, the employer must make the following statements: . that the inability to hire foreign nurses would result in a substantial disruption of health care services at the employer's facility . that employing foreign nurses will not adversely affect the wages and working conditions of American nurses in similar positions
. that foreign nurses will be paid the same wages as other RNs working at the employer's facility
. that the employer is making timely and significant efforts to recruit and keep enough U.S.-citizen or green card-holding RNs, such that its dependence on foreign workers will lessen, or that the employer's facility is operating under an approved plan, filed with DOL by the government of the state where it is located, to recruit and keep American nursing personnel . that there are no labor strikes or lockouts in progress and foreign nurses are not being hired to influence union elections, and . that notification of each H-1A petition filed will be given to the proper labor union, or, if no labor union represents the RNs at that institution, that notification of each H-1A petition will be posted in a conspicuous location at the facility, where it will remain for one year.
1. Substantial Disruption of Services
Any of four specific tests may be used to measure whether or not a substantial disruption of health care services at the institution in question would result if foreign RNs were not employed. The four tests are:. Seven percent or more of the nursing positions at the employer facility are unfilled. . Seven percent or more of the employer's beds are not being used because of a nursing shortage.
. Because of a nursing shortage, the employer has had to curtail essential heath care services not otherwise available in the local community. To use this test, the employer must attach to Form ETA 9029 a written explanation describing the decreased services. . A nursing shortage has made the employer unable to carry out established plans to provide needed new health care services in the local community. To use this test, the employer must attach a written explanation to Form ETA 9029 describing the needed service.In Question 8A on Form ETA-9029, the employer must mark which of the four tests is being relied upon for the attestation, describing the needed services. If the employer cannot meet one of these tests but still believes that a substantial disruption in services will occur if foreign nurses cannot be hired, the box for "other" in Question 8A of the Form ETA 9029 must be marked. Then, the employer is required to attach a written explanation of why the usual tests are inappropriate measures. In the explanation, the employer must suggest an alternative test. The alternative measures the employer wishes to use should be described. In addition, details must be given explaining how a nursing shortage has directly resulted in reduced essential services at the employer facility.The employer is required to keep on file documents to substantiate its claim under this attestation element. The documents must contain the following information:. the number of nursing positions at the facility . the number of nursing vacancies occurring at the facility in the previous 12 months . the number of nurses who left their jobs in the previous 12 months the number of nurses hired by the employer in the previous 12 months . the overall staffing pattern for nursing positions, including percentages of Americans, percentages of non-Americans, salary levels and staffing by shifts, and . a description of the institution's efforts to recruit American nurses in the previous 12 months. The records kept by the employer must break this information down by number of American nurses, number of nurses admitted with H1 or H-1A visas, number of nurses admitted with other nonimmigrant visas and number of nurses with other immigration statuses such as green cards, amnesty, or Canadian Free Trade Treaty.
2. Adverse Effect on Prevailing Wage
For the second element of the attestation, the employer asserts that hiring foreign nurses will not adversely affect the wages and working conditions of American registered nurses similarly employed. Here, the employer guarantees to pay at least the "prevailing" (average) salary for nurses in that geographical area, as determined by the labor department in the state where the employer facility is located. If there is a set-wage scale at the facility that resulted from collective bargaining with a labor union, the employer guarantees to pay that wage. If the employer routinely gives other non-wage benefits to American nurses, then they must be given to H-1A nurses, too. This also means that American and H-1A nurses with the same seniority will be given equal treatment regarding the number and scheduling of hours worked, vacations, ward rotations, clinical rotations and patient loads. The employer must maintain documents to show compliance with this attestation element. The documents should include summaries of pay schedules and compensation packages. In addition, each category of nursing position at the facility must be listed, both b specialty and by shift.
3. Comparable Wage Level
The third element of the attestation requires a statement that the employer will pay H-1A nurses the same wages as it pays American RNs for similar jobs. The wages must also be the same as those shown in the salary schedules that document the second element of the attestation.
4. Efforts to Recruit American Nurses
As the fourth element of the attestation, the employer facility must state that it is taking timely and significant steps to recruit and keep American nurses. This element may be satisfied in one of two ways. The first is for the employer to show that the state government where the facility is located has submitted and received approval from DOL on an overall plan to recruit and keep American nurses. This is an involved procedure for the state. It is unlikely that more than a few states will undertake it. Alternatively, if the state in which the H-1A nurse will be working does not have an approved plan, the employer must show that it is taking at least two significant steps to recruit and keep American nurses. The employer must keep documents on file proving that two steps have in fact been taken. DOL has specifically approved five possible actions as recognized significant steps for this purpose:. The employer operates one or more training programs for registered nurses. For this step, documentation must be maintained describing the type of training programs available and how these programs help to recruit or keep American nurses. Any costs for attending the program as well as the costs of operating the program must be financed by the employer. Finally, the training must be offered to a number of American workers. The total must be at least one-half the number of American nurses that left the employer in the past 12 months. . The employer facility may offer a career-development program intended to encourage people to become RNs. To rely on this step, the employer must keep documents showing the content and eligibility requirements of the program, as well as an explanation of how it is effective in recruiting and retaining American nurses on the job. If the program leads to a degree, the courses of study must be accredited by the state board of nursing. If there is a career-path program in effect, the employer must keep documents showing that the program is normally part of a course of study, or training which prepares American workers for enrollment in formal classes leading to a degree in nursing. The employer must completely finance all such programs. Finally, the training must be given to a minimum number of American workers. Here, the minimum is a total of at least half the average number of nursing vacancies at the employer institution during the 12 months before the attestation was filed. . The third step the employer may take is to pay RNs at least five percent more than the prevailing wage, and to agree to continue doing so while the attestation is valid.. The fourth significant step an employer may take is to provide good support services to RNs, freeing them from administrative and non-nursing duties such as housekeeping, food preparation, transporting patients, answering telephones and clerical tasks. An employer relying on this step may not require its RNs to undertake non-nursing duties unless it is on an infrequent and nonrecurring basis. Documents supporting this step must contain descriptions of what actions have been taken to make certain that RNs will not have to perform non-nursing duties. The fifth step an employer may take is to provide RNs with reasonable opportunities for meaningful longterm salary advancements. These opportunities must be based on a combination of merit, education, specialty and seniority. Also, the employer must, at its own expense, provide opportunities for its RNs to at tam an additional credentials that are prerequisites for the salary increases. For seniority increases, the employer must have established clinical ladders which will provide minimum annual salary increases of three percent above the cost of living for at least ten years. These seniority raises must be in addition to raises based on merit, education and specialty. The employer must maintain documentation fully describing these programsEmployers may choose to rely on other significant steps to promote the availability of U.S. nurses, however, if any alternative method is used other than those listed, the employer must attach to the ETA-9029 form a detailed description of the alternative significant step being taken and explain why it is at least as effective as the five described above. Be aware that if DOL disagrees with the effectiveness of a proposed alternative step, this is grounds to deny the attestation. It would therefore be advisable for employers to take at least two of the specific five steps listed above.
RENEWING ATTESTATIONS
After the initial attestation acceptance has expired, an employer may renew its attestation without having to prove it is taking at least two significant steps to reduce its reliance on foreign nurses. However, the employer must state it will reduce by at least ten percent the number of foreign nurses it hires during the next year. This may be done by marking the proper box under Question 8(iv) of the Form ETA-9029. To renew the attestation in the future without having to continue with the significant steps, the employer must in fact have reduced the number of foreign nurses on its staff by at least ten percent in the past year. In addition, the employer must state that it will again reduce the number of foreign nurses by ten percent in the next year.
5. No Strikes or Lockouts
As the fifth element of the attestation, the employer must state that there are no strikes or lockouts now going on because of a labor dispute, and the employment of H-1A nurses is not intended or designed to influence an election of a union representative for RNs at the facility.
6. Notification to Labor Unions
The final element of the attestation is a sworn commitment by that employer that every time an H-1A petition is filed, it will notify any labor union representing the nurses already employed there. If there is no such union, then the employer must promise that notifications of all H-1A filings will be posted on a bulletin board in a prominent location at the facility. The posting must remain in place for one year. Noncompliance with this procedure could result in revocation of an already approved attestation, or even civil fines.
SPECIAL RULES FOR EMPLOYERS
Employment contractors who hire out RNs temporarily to health care facilities can act as H-1A petitioners, but they, too, must file attestations. Copies of both the contractor's and institution's attestations must be fled with the Step One petition. Contractors may ask DOL for a waiver of the attestation requirement. No special form exists for such a waiver request. Contractors who wish to request this waiver should write out the request on letterhead, explaining that they are contractors, not direct providers of health care services, and that the required attestations are not relevant to their positions as contractors. This should be mailed to the same address, listed above at the start of Section 3, where attestations are filed. It will probably take about a month to get an answer. If the request for a waiver is denied, the contractor will be required to meet the standard attestation requirements described above before acting as an H-1A petitioner.
C. Obtaining an H-1A Visa
Once you have been offered a job and your U.S. employer has completed the preliminary attestation, getting an H-1A visa is a two-step process. Some applicants expect their U.S. employers to handle the entire process for them and, indeed, many large hospitals and institutions have experienced staff specialists who will do this for highly desirable employees. Even smaller hospitals and institutions may be prepared to do whatever is necessary, including paying an immigration attorney's fees, to attract key employees. However, often it is the employee who is most interested in having the visa issued, and to U.S. employers, the red tape of hirin a foreign employee can be an unfamiliar nuisance. As we give you step-by-step instructions for getting an H-1A visa, we will indicate that certain activities are to be performed by your employer and others are to be done by You. We will discuss each task according to who has legal responsibility for carrying it out. Though the law presumes your employer is performing a particular function, there is nothing to stop you from helping with the work. For example, you can fill out forms intended to be completed by Your employer and simply ask the appropriate official to check them over and sign them. Unless your employer volunteers to help or you are sure the hospital or institution simply can't live without you, we recommend doing the paperwork yourself. The less your U.S. employer is inconvenienced, the more it will be willing to act as sponsor for your visa. An imposition on an employer's time or money might cost you a job offer. With the help of this book, you will know how to do all that is required. It is completely legal as well as in your best interest to help whenever possible.
A WORD OF WARNING
Although you are free to help out your employer in your own case, only lawyers may charge a fee for helping others with immigration work. Don't try going into the business of charging others for this service. That is known as practicing law without a license and is a crime in most U.S. states.
1. Step One: The Petition
The petition is filed by your U.S. employer. All H-1A visa petitions are submitted to INS regional service centers in the U.S. The object of the petition is to prove four things:
. that you personally qualify as a registered nurse
. that you are fully licensed in the U.S. state of intended employment or have passed the CGFNS exam
. that you have been offered full-time employment as an RN, and that your U.S. employer has the financial ability to pay your salary. Be aware that an approved petition does not by itself give you any immigration privileges. It is only a prerequisite to Step Two, submitting your application for an H-1A visa. The petition must be approved before you are eligible for Step Two.
2. Step Two: The Application
The application is filed by you and your accompanying relatives, if any. The application is your formal request for an H-1A visa. If you are Canadian, your Step Two procedure will be different than what is described here. See Chapter 29. Step Two may be carried out in the U.S. at an INS office or in your home country at a U.S. consulate there. If you file Step Two papers in the U.S., you will usually submit them together with those for Step One. When Step Two is dispatched at a U.S. consulate abroad, you must wait to file the application until the Step One petition is first approved. The vast majority of nonimmigrant visa applications are filed at consulates. The major benefit is that an H-1A visa, which is stamped in your passport, can be issued only by American consulates. When you file Step Two at a consulate, your visa will be stamped in your passport at that time. INS offices inside the U.S. may issue statuses, but not visas. (See Chapter 14, Section B.)If you are already in the U.S. legally on some other type of nonimmigrant visa, you qualify to apply for an H-1A status at an INS office inside the U.S. using a procedure known as change of nonimmigrant status. (If you were admitted as a visitor without a visa under the Visa Waiver Program, currently available only to nationals of Andorra, Austria, Belgium, Denmark, Finland, France, Germany, Great Britain, Holland, Iceland, Italy, japan, Liechtenstein, Luxembourg, Monaco, New Zealand, Norway, San Marino, Spain, Sweden and Switzerland, you may not carry out Step Two in the U.S.) This is simply a technical term meaning you are switching from one nonimmigrant status to another. If a change of status is approved, you will then be treated as If you had entered the country with an H-1A visa. You can keep the status as long as you remain in the U.S. or until it expires, whichever comes first. You will not, however, receive a visa stamp, which you need if your plans include traveling in and out of the U.S. Again, visa stamps are issued only at U.S. consulates abroad. Therefore, if you change Your status and later travel outside the U.S., you will have to go to the U.S. consulate in your home country and repeat Step Two, obtaining the H-1A visa stamp in your passport before you can return. This extra procedure makes changing status an unattractive option for all but Canadians, who don't need visas to cross the U.S. border.
SPECIAL PROCEDURES FOR CANADIANS
Under the North American Free Trade Agreement (NAFTA) between the U.S., Canada and Mexico, Canadian RNs can come to the U.S. to work for a year at a time without an approved H-1A visa petition. See Chapter 29, Canadians:Special Rules, for more details. This privilege does not extend to Mexican nationals.
3. Paperwork
There are two types of paperwork you must submit to get an H-1A visa. The first consists of official government forms completed by you or your U.S. employer. The second is personal documents, such as academic credentials and a nursing license. We will tell you exactly what forms and documents you need. It is vital that forms are properly filled out and all necessary documents are supplied. You or your U.S. employer may resent the intrusion into your privacy and sizable effort it takes to prepare immigration applications, but you should realize the process is an impersonal matter to immigration officials. Your getting a visa is more important to you than it is to the U.S. government. This is not a pleasant thing to accept, but you are better off having a real understanding of your position. People from all over the world want U.S. visas. There is no shortage of applicants. Take the time and trouble to prepare your papers properly. In the end it will pay off with a successful application.The documents you or your U.S. employer supply to INS do not have to be originals. Photocopies of all documents are acceptable as long as you have the originals in your possession and are willing to produce them at the request of INS. Documents submitted to U.S. consulates, on the other hand, must be either originals or official government certified copies. Government certified copies and notarized copies are not the same thing. Documents which have only been notarized are not acceptable. They must carry a government seal. In addition to any original or government certified copies of documents submitted to a consulate, you should submit plain photocopies of each document as well. After the consulate compares the copies with the originals, it will return the originals.Documents will be accepted if they are in either English, or, with papers filed at U.S. consulates abroad, the language of the country where the documents are being filed. An exception exists for papers filed at U.S. consulates in Japan, where all documents must be translated into English. If the documents are not in an acceptable language as just explained, they must be accompanied by a full, word for word, written English translation. Any capable person may act as translator. It is not necessary to hire a professional. At the end of each translation, the following statement must appear:I hereby certify That I translated this document from (language) to English. This translation is accurate and complete. I further certify that I am fully competent to translate from (language) to English. The translator should sign this statement but it does not have to be witnessed or notarized. Later in this chapter we describe in detail the forms and documents needed to get your H-1A visa. A summary checklist of forms and documents appears at the end of the chapter.
D. Who's Who in Getting Your H-1A Visa
Getting an H-1A visa will be easier if you familiarize yourself with the technical names used for each participant in the process. During Step One, the petition, you are known as either the beneficiary and your U.S. employer is called the petitioner or the employer. The petitioner may be an institution, a contractor or a private household. In Step Two, the application, you are called applicant, but your employer remains the petitioner. If you are bringing your spouse and children with you as accompanying relatives, each of them is known as applicant as well.
E. Step One: The Petition
The U.S. employer submits the petition, consisting of forms and documents, by mail, in duplicate, to the INS regional service center having jurisdiction over your intended employer's place of business. INS regional service centers are not the same as INS local offices. There are four INS regional service centers spread across the U.S. Appendix ll contains a list of all INS regional service centers with their addresses.The filing fee for each petition, if no change of status (Step Two, U.S. Filing) is being requested, is currently $85 With a change of status request, the fee is $155. Checks or money orders are accepted. It is not advisable to send cash We recommend submitting all papers by certified mail, return receipt requested, and making a copy of everything sent in to keep in your records. Within a week or so after mailing in the petition, your employer should get back a written confirmation that the papers are being processed, together with a receipt for the fees. This notice will also give your immigration file number and tell approximately when you should expect to have a decision. If INS wants further information before acting on your case, all petition papers, forms and documents will be returned to your employer with another form known as an I-72. The I-72 tells your employer what additional pieces of information or documents are expected. Your employer should supply the extra data and mail the whole package back to the INS regional service center. H-1A petitions are normally approved within three to eight weeks. When this happens, a Notice of Action Form I-797 will be sent to your employer showing the petition was approved. If you plan to execute Step Two at a U.S. consulate abroad, INS will also notify the consulate of your choice, sending a complete copy of your file. Only the employer receives communications from INS about the petition because technically it is the employer who is seeking the visa on your behalf.
1. Petition Forms
Form I-129 and H Supplement
The basic form for Step One, petition, is immigration Form I-129 and H Supplement. The I-129 form is used for many different nonimmigrant visas. In addition to the basic part of the form that applies to all types of visas, it comes with several supplements for each specific nonimmigrant category. Simply tear out and use the supplement that applies to you. Your employer must file the petition form in duplicate. Send in two signed originals. Copies are not acceptable. More than one foreign employee may be listed on a single I-129 petition. This is done if the employer has more than one opening to be filled for the same type of job. If more than one employee is to be included, Supplement-1, which is also part of Form I-129, should be completed for each additional employee. Most of the questions on the I-129 form are straight for ward. If a question does not apply to You, answer it with "None" or "N/A." Those questions requiring explanations are as follows:
Part 1. These questions concern the employer only and are self-explanatory.
Part 2. Question 1. Question one should be answered "H-1A."
Questions 2-3. These questions are self-explanatory.
Question 4. This question asks you to indicate what action is requested from INS. Normal you will mark box "a" which tells INS to notify a U.S. consulate abroad of the petition approval so that you may apply for a visa there. If you will be filing your Step Two application in the U.S., mark box "b." If this petition is being filed as an extension, mark box "c."
Question 5. This question is self-explanatory
Part 3. These questions are self-explanatory. If you previously held a U.S. work permit and therefore have a U.S. Social Security number, put down that number where asked. If you have a Social Security number that is not valid for employment, put down that number followed by "not valid for employment." If you have never had a Social Security number, put down "None." Alien Registration Numbers, which all begin with the letter "A," are given only to people who have applied for green cards, received political asylum or been in deportation proceedings. If you do have an "A" number, put that number down and also explain how you got it, such as "number issued from previous green card petition filed by my brother." If you do not have an "A" number, write down "None." If Your present authorized stay has expired, you must disclose that where asked. This should not affect your ability to get an H-1A visa at a U.S. consulate, but If you are out of status now, you cannot file Step Two inside the U.S.
Part 4. These questions are self-explanatory.7nder recent changes in the law, the fact that you may have a green card petition or application in process does not prevent 7ou from getting an H-1A visa.
Part 5. These questions are self-explanatory. The dates of intended employment should not exceed a total of three years, which is the maximum period of time for which an H-1A petition may be approved.
H Supplement, Top of Form. These questions are self-explanatory.
H Supplement, Section 1. Complete only the first two items, which are self-explanatory.
H Supplement, Sections 2-4. These do not apply to H-1A petitions and should be left blank.
2. Petition Documents
You must provide several documents with the petition.
a. Preliminary Attestation
Your employer must submit evidence that he has completed the preliminary attestation. This involves supplying a copy of the accepted attestation, Form ETA-9029.
b. Job certification Documents
Your employer must show that the job you have been offered really exists. To do this, the facility must produce either a written employment contract with you or a written summary of an oral contract. The terms of your employment, including job duties, hours, salary and other benefits should be mentioned in the document.
c. Nursing Qualification Documents
You must provide a copy of your nursing school diploma and, if available, a transcript of the courses you took leading to the nursing degree. If you attended nursing school outside the U.S. or Canada, you must also provide a copy of yur nursing license from the country where you studied finally, You must submit either a copy of your certificate from CGFNS, showing you passed the exam, or a copy of a full and unrestricted nursing license from the U.S. state of intended employment.
d. Salary Level Documents
Your employer must also supply documents to prove the facility can afford to pay Your salary. If your employer is a large public hospital or corporation, INS will probably approve your petition without this evidence. If an annual shareholder's or directors report is available, yol should submit that. If your employer is a private household or a nursing contractor, INS will be more concerned about its ability to pay you. With the petition your employer should offer U.S. tax returns for the past two years.
3. Petition Interviews
INS rarely holds interviews on H-1A visa petitions. When INS does, the interview is always with the employer. If you are in the U.S., you may be asked to appear as well. Interviews are requested only if INS doubts that the documents or information on Form I-129 and the H supplement are genuine. Then the petition file is forwarded from the INS regional service center where it was submitted to the INS local office nearest your place of intended employment, and your employer is notified to appear there. The employer may also be asked to bring additional documents at that time. If, after the interview, everything is in order, the petition will be approved. The best way to avoid an interview is to have the employer document the petition well from the beginning.
4. Petition Appeals
When your nursing credentials or the ability of the employer to pay your salary have be,on poorly documented, the petition will probably be denied. Your employer will then get a notice of INS's unfavorable decision, a written statement of the reasons for the negative outcome and an explanation of how to appeal.The best way to handle an appeal is to try avoiding it altogether. Filing an appeal means making an argument to INS that its reasoning was wrong. This is difficult to do successfully. If you think you can eliminate the reason your petition failed by improving your paperwork, it makes sense to disregard the appeals process and simply file a new petition, better prepared than the first.If the petition was denied because your U.S. employer left out necessary documents that have since been located, the new documents should be sent together with a written request that the case be re opened to the same INS office that issued the denial. This is technically called a Motion to Reopen. There is a $110 fee to file this motion. Appeals often take a long time. A Motion to Reopen can be concluded faster than an appeal.
If your U.S. employer does choose to appeal, it must be done within 30 days of the date on the Notice of Denial. The appeal should be filed at the same INS office which issued the denial. There is a $110 filing fee. INS will then forward the papers for consideration to the Administrative Appeals Unit of the central INS office in Washington, D.C.In six months or more your employer will get back a decision by mail. Few appeals are successful. When an appeal to INS has been denied, the next step is to make an appeal through the U.S. judicial system. Your employer may not file an action in court without first going through the appeals process available from INS. If the case has reached this stage and you are in the U.S. illegally, we strongly recommend seeking representation from a quasi find immigration attorney, as you are now in danger of being deported.
F. Step Two: The Application (Consular Filing)
If you are Canadian, your Step Two procedures will be different from those of other applicants. See Chapter 29, C7n77i7n1.· fr7ri7f 7Hf7f, for details. Anyone with an approved H-1A petition can apply for a visa at a U.S. consulate in his or her home country. You must be physically present to apply there. Even ifyou have been or are now working or living illegally in the U.S., you 7an still get an H-1A visa from a U.S. consulate ifyou otherwise qualify.
1. Benefits and Drawbacks of Consular Filing
The most important benefit to consular filing, making it almost always preferable to U.S. filing, is that only consulates issue visas. When you go through a U.S. filing, you get a status, not a visa. (See Chapter 14, Section B.) An H-1A status confers the same right to work as an H-1A visa, but it does not give you the ability to travel out of the U.S. and get back in again. Therefore, if you want travel privileges, you will at some time have to go through the extra step of applying for a visa at a U.S. consulate, even though you have already applied for and received H-1A status in the U.S. Moreover, anyone with an approved petition may apply for an H-1A visa at the appropriate consulate. That is not the case with U.S. applications for H-1A status. If you are in the U.S. illegally, consular filing is a must. You are not eligible to process a status application in the U.S. unless your presence and activities in the U.S. have always been legal. A drawback to consular filing comes from the fact that you must be physically present in the country where the consulate is located to file there. If your petition is ultimately turned down because of an unexpected problem, not only will you have to wait outside the U.S. until the problem is resolved, but other visas in your passport, such as a visitors visa, may be canceled. It will then be impossible for you to enter the U.S. in any capacity. Consequently, if your H-1A visa case is not very strong and freedom of travel is not essential to you, it might be wise to apply in the U.S., make up your mind to remain there for the duration of the H-1A status and skip trying to get a visa from the consulate.
2. Application General Procedures: Consular Filing
Technically, the law allows you to apply for ion H-1A visa at any U.S. consulate you choose. A complete list of all U.S. consulates that process visa applications, together with their addresses and phone numbers, is in Appendix I. However, from a practical standpoint, your case will be given the greatest consideration at the consulate in your home country. Applying in some other country creates suspicion in the minds of the consul officers there about your motives for choosing their consulate. Often, when an applicant is haying trouble at a home consulate, he will seek a more lenient office in some other country. This practice of consulate shopping is frowned on by officials in the system. Unless you have a very good reason for being elsewhere (such as a temporary job assignment in some other nation) , it is smarter to file your visa application in your home country. You may not file an application for an H-1A visa at a consulate before your petition has been approved. Once this occurs, the INS regional servile center where the petition was originally submitted will forward a complete copy of your file to the U.S. consulate designated on Form I-129 in Step One. At the same time, a Notice of Action Form I-797 indicating approval will be sent directly to your U.S. employer. Once your employer receives this, you should telephone the consulate to see if the petition file has arrived from INS. If the file is slow in coming, ask the consulate to consider granting approval of your H-1A visa based only on the Notice of Action. Many U.S. consulates are willing to do so.Once the petition is approved, you can simply walk into many consulates with your application paperwork and get your H-1A visa immediately. Others insist on advance appointments. Most U.S. consulates in Canada require you to appear at least a week in advance of your interview to receive an appointment. Some, like London, prefer to process visa applications by mail. Since procedures among consulates vary, you should always telephone in advance to ask about local policies.On entering the U.S. with your new H-1A visa, you will be given an I-94 card. It will be stamped with a date showing how long you can stay. Normally, you are permitted to remain up to the expiration date on your H-1A petition. Each time you exit and reenter the U.S., you will get a new I-94 card authorizing your stay up to the final date indicated on the petition.
3. Application Forms: Consular Filing
Form OF-156
H-1A visa applications are made on a standard form OF-156 called Nonimmigrant Visa Application. Forms OF-156 must be filled out for you and each of your accompanying relatives. Many consulates have their own version of this form, usually in thle native language of the country where they are located in. The sample found in Appendix 111 is the one commonly usetl at U.S. consulates in English-speaking countries. If you get a different version, the question numbers may vary from those described below, but the data requested will be essentially the same.
Questions 1-6 . These questions are self-explanatory.
Question 7. Question 7 asks for information about your passport. If it is due to expire soon, you would be wise to renew it before applying for the visa. You must have a valid current passport at all tildes while in the U.S.
Questions 8-19. These questions are self-explanatory.
Question 20. This question is self-explanatory. You should be aware that just because you tried unsuccessfully to get a visa before doesn'r mean you can't try again. Don't hide previous failed efforts. records of all denied visa applications are kept on german(Int file. They are easy to check.
Question 21. This question is self-explanatory
Question 22. The best answer is: "I will be working for my U.S. employer as indicated on my H-1A visa petition.
Question 23. Question 23 relates only to students and should be answered "N/A."
Question 24. Answer Question 24 with the statement "Employment pursuant to my H-1A visa."
Questions 25-28. These questions are self-explanatory
Question 29. Question 29 asks; how long you plan to stay in the U.S. The answer should be consistent with those dates you put down on your I-12y form in Step One.
Questions 30-36. These questions are self-explanatory.
4. Application Documents: Consular Filing
You must show a valid passport an71 present one passporttype photograph taken according to the photo instructions in Appendix 111. If the consulate has lot yet received your INS file containing the paperwork from the approved Petition, you will then need to show the original Notice of Action Form I-797 which your employer received from INS by mail. Most consulates will issue H1 A visas based only on the Notice of Action, although some , particularly in South America and Asia, insist on seeing the complete INS file. If the consulate wants to see your file and it is late (more than a month) in arriving, you should request that the consulate investigate the file's whereabouts. You, too, can write the INS regional service center where your petition was processed, asking officials there to look for the file. For each accompanying relative, you must present a valid passport and one passport-type photograph taken according to the photo instructions in Appendix III. You will also need documents verifying their family relationship to you. You may verify a parent/child relationship by presenting the child's long form birth certificate. Many countries, including Canada and England, issue both short and long form birth certificates. Where both are available, the long form is needed because it contains the names of the parents while the short form does not. If you are accompanied by your spouse, you must prove that you are lawfully married by showing a civil marriage certificate. Church certificates are generally unacceptable. (There are a few exceptions, depending on the laws of your particular country. Canadians, for example, may use church marriage certificates if the marriage took place in Quebec Province, but not elsewhere. If a civil certificate is available, however, you should always use it.) You may have married in a country where marriages are not customarily recorded. Tribal areas of Africa are an example. In such situations, call the nearest consulate or embassy of your home country for help with getting acceptable proof of marriage.There may or may not be a fee for the visa. H-1A visas are issued free to the citizens of most countries, but others may be charged fees that can be as high as $ 100. If the country of your nationality charges fees for visas to U.S. citizens who wish to work there, then the U.S. will charge people of your country a similar fee as well. Whether or not there is a fee is determined by your nationality, not by where you apply. Check with the nearest U.S. consulate to find out if there will be a fee in your case.
5. Application Interviews: Consular Filing
The consulate will frequently require an interview before issuing an H-1A visa. During the interview, a consul officer will examine the data you gave in Step One for accuracy, especially regarding facts about your own qualifications.
6. Application Appeals: Consular Filing
When a consulate turns down an H-1A visa application, there is no way to make a formal appeal, although you are free to reapply as often as you like. Some consulates, however, will make you wait several months before allowing you to file another application. If your visa is denied, you will be told by the consul officer the reasons for the denial. Written statements of decisions are not normally provided in nonimmigrant cases. If a lack of evidence about a particular point is the problem, sometimes simply presenting more evidence on an unclear fact can bring a positive change in the result.The most likely reasons for having an H-1A visa turned down are because you are found excludable or the consulate believes that you are not really qualified as an RN.Certain people who have been refused visas reapply at a different consulate, attempting to hide the fact that they were turned dclwn elsewhere. You should know that if your application is denied, the last page in your passport will be stamped "Application Received" with the date and location of the rejecting consulate. This notation shows that some type of prior visa application has failed. It serves as a warn ins to other consulates that your case merits close inspection. If what we have just told you makes you think it would be a good idea to overcome this problem by obtaining a new, unmarked passport, you should also know that permanent computer records are kept of all visa denials.
G. Step Two: The Application ( U.S. Filing)
If you are physically present in the U.S., you may apply for H-1A status-but not a visa (see Chapter 14, Section B, Difference Between a Visa and a Status)-without leaving the country on the following conditions:
. you are simultaneously filing paperwork for or have already received an approved petition
. you entered the U.S. legally
. you have never worked in the U.S. illegally, and
. the date on your I-94 card has not passed.
If you were admitted as a visitor without a visa under the Visa Waiver Program, currently available only to nationals of Andorra, Austria, Belgium, Denmark, Finland, France, Germany, Great Britain, Holland, Iceland, Italy, japan, Liechtenstein, Luxembourg, Monaco, New Zealand, Norway, San Marine, Spa,in, Sweden and Switzerland, you may not carry out step two in the U.S.If you cannot meet these terms, you may not file for H-1A status in the U.S. It is important to realize, however, that eligibility to apply in the U.S. has nothing to do with overall eligibility for an H-1A visa. Applicants who are barred from filing in the U.y:but who otherwise qualify for H-1A status can apply successfully for an H-1A visa at U.S consulates abroad. If you find you are not eligible for U.S. filing, read Section F.
1. Benefits any Drawback of U.S. Filing
Visas are never given inside the U.S. They are issued exclusively by U.S. consulates abroad . If you file in the U.S. and you are successful, you will get IflA status but not the visa itself. This is a major drawback to U.S. applications. H-1A status allows you to remain in the U.S. with H-1 A privileges until the status expires, but should you leave the: country for any reason before that time, you will have try apply for the visa itself at a U.S. consulate before returning to America. Moreover, the fact that your H-1A status has been approved in the U.S. does not guarantee that the consulate will also approve your visa. Some consulates may even regard your previously acquired H-1A status as a negative factor, an indication that you have deliberately tried to avoid the consulate's authority. There is another problem which comes up only in U.S. filings. It is the issue of what is called preconceived. To approve a change of status, INS must believe that at the time you originally entered the U.S. as a visitor or with some other nonimmigrant visa, you did nt)t intend to apply for a more privileged status. If INS thinks you had a preconceived plan to change from the status you arrived with to a better status, it may deny your application. The preconceived-intent issue is one less potential hazard you will face if you apply at a U.S. consulate abroad. On the plus side of U.S. filing is that when problems do arise with your U.S. application, you can stay in America while they are being corrected, a circumstance most visa applicants prefer. If you run into snags at a U.S. consulate, you will have to remain outside the U.S. until matters are resolved.
2. Application General Procedures: U.S. Filing
The general procedure for filing Step Two in the U.S. is to follow Step One as outlined above, but to mark box "4b" in Part 2 of Form I-129, indicating that. you will complete processing in the U.S. There is no separate application form for filing Step Two in the U.S. If you halve an accompanying spouse or children, however, a separate Form I-539 must be filed fur them.When you apply for a change rif status, the filing fee for a Step One petition is presently $155. If you are also applying for accompanying relatives, there is an additional fee of $75 for the first dependent and $ 10 more for each additional dependent. For example, if you are applying for yourself, your spouse and two children, the total filing fee is $ 155 for you plus $95, which covers all your family members. The $95 breaks down to $'15 for the first of your three dependents and $ 10 each for the remaining two. Checks and money orders are accepted. It is not advisable to send cash. We recommend submit ins all papers by certified mail, return receipt requested , and making a copy of everything sent in to keep for your records.ithin a week or two after mailing in the application, you should get back a written notice of confirmation that the Papers are being processed, together with a receipt for the fee. This notice will also tell you your immigration file number and approximately when to expect a decision. If INS wants further information before acting on your case, all application papers, forms and documents, will be returned together with another form known as an I-72. The I-72 tells you what additional pieces of information or documents are expected. You should supply the extra data and mail the whole package back to the INS regional service center.Applications for an H-1A status are normally approved within two to eight weeks. When this happens, you will receive a Notice of Action Form I-797 indicating the dates for which your status is approved and a new I-94 card will be attached to the bottom of the form.
3. Application Forms: U.S. Filing
Form I-129
Follow the directions in Section El, above, except in Part 2 mark box "4b" instead of box "4a."
Form I-539 (for accompanying relatives only)
Only one application form is needed for an entire family, but if there is more than one accompanying relative, each additional one should be listed on the I-539 supplement.
Part 1. These questions are self-explanatory. "A" numbers are usually given only to people who have previously applied for green cards or who have been in deportation proceedings.
Part 2, Question 1. Mark box "b," and write in "H-4."
Question 2. This question is self-explanatory.
Part 3. In most cases, you will mark Item 1 with the date requested in the Step One petition. You will also complete Items 3 and 4, which are self-explanatory.
Part 4, Questions 1-2. These questions are self-explanatory.
Question 3. The different parts to this question are self-explanatory, however, Items "a" and "b" ask if an immigrant visa petition or adjustment of status application has ever been filed on your behalf. If you are applying for a green lard through a relative, this would be Step One, as described in Chapter 5. If you are applying for a green card through employment, this would be Step Two as described in Chapter 8. If you have only begun the Labor Certification, the first step of getting a green card through employment, this question should be answered "no."
4. Application Documents: U.S. Filing
Each applicant must submit an I-94 card, the small white card you received on entering the U.S. Remember, if the date stamped on your I-94 card has already passed, you are ineligible for U.S. filing. If you entered the U.S. under the Visa Waiver Program and have a green I-94 card, you are also ineligible for U.S. filing. Canadians who are just visiting are not expected to have I-94 cards. Canadians with any other type of nonimmigrant status should have them. for each accompanying relative, send in an I-94 card. You will also need documents verifying their family relationship to you. You may prove a parent/child relationship by presenting the child's long form birth certificate. Many countries, including Canada and England, issue both short and long form birth certificates. Where both are available, the long form is needed because it contains the names of the parents while the short form does not. If you are accompanied by your spouse, you must prove that you are lawfully married by showing a civil marriage certificate. Church certificates are usually unacceptable. (There are a few exceptions, depending on the laws of your particular country. Canadians, for example, may use church marriage certificates if the marriage took place in Quebec Province, but not elsewhere. If a civil certificate is available, however, you should always use it.) You may have married in a country where marriages are not customarily recorded. Tribal areas of Africa are an example. In such situations, call the nearest consulate or embassy of your home country for help with getting acceptable proof of marriage.
5. Application Interviews: U.S. Filing
Interviews on H-1A change of status applications are rarely held. When an interview is required, the INS regional service center where you filed will send your paperwork to the local INS office nearest the location of your U.S. employer's institution. This office will in turn contact you for an appointment. (If INS has questions on the Step One petition rather than the application, your employer will be contacted. ) INS may ask you to bring additional documents at that time. If you are called for an interview, the most likely reason is that INS either suspects some type of fraud or believes you may be subject to a ground of excludability. Interviews are usually a sign of trouble and can result in considerable delays.
6. Application Appeals: U.S. Filing
If your application is denied, you will receive a written decision by mail explaining the reasons for the denial. There is no way of making a formal appeal to INS if your application to change status is turned down. If the problem is too little evidence, you may be able to overcome this obstacle by adding more documents and resubmitting the entire application to the same INS office you have been dealing with together with a written request that the case be reopened. The written request does not have to be in any special form. This is technically called a Motion to Reopen. There is a $110 fee to file this motion. Remember that you may be denied the right to a U.S. filing without being denied an H-1A visa. When your application is turned down because you are found ineligible for U.S. filing, simply change your application to a consular filing. Although there is no appeal to INS for the denial of an H-1A change of status application, you do have the right to file an appeal in a U.S. district court. It would be difficult to file such an appeal without employing an attorney at considerable expense. Such appeals are usually unsuccessful
H. Extensions
H-1A visas can be extended for two years at a time, but you may not hold an H-1A visa for longer than a total of six years. Although an extension is usually easier to get than the H-1A visa itself, it is not automatic. INS has the right to reconsider your qualifications based on any changes in the facts or law, and your employer must renew its attestation each year. As always, however, good cases that are well prepared will be successful. To extend your H-1A visa, the petition and visa stamp will both have to be updated. As with the original application, you can file either in the U.S. or at a consulate. However, contrary to our advice on the initial visa procedures, extensions are best handled in the U.S. That is because visa stamps, which can only be issued originally at consulates, may be extended in the U.S.
1. Step One: Extension Petition
Extension procedures are identical with the procedures followed in getting the initial visa, except that less documentation is required and the fling fee for the worker is only $125. In addition to the employer's attestation, you need only submit your I-94 card, a letter from the employer requesting your visa be extended, and a copy of your U.S. income tax returns for the previous two years, including the W-2 forms.
a. Extension Petition Forms
Form I-129 and H Supplement
Follow the directions for this form in Section E1 . The only difference is that you will mark boxes "2b" and "4c" of part 2.
Form I-539 (for accompanying relatives only)
Follow the directions for this form in Section G3, but mark box " la" of part 2.
Form I-765 (needed only if a decision on the extension application is not received within four months)
Block Above Question 1. Mark the first box, "permission to accept employment."
Questions 1-9. These questions are self-explanatory.
Question 10. You will not usually have an Alien Registration Number unless you previously applied for a green card, were in deportation proceedings or have had certain types of immigration applications denied. All Alien Registration Numbers begin with the letter "A." If you have no "A" number but you entered the U.S. with a valid visa, you should have an I-94 lard. In this case, answer Question 10 by putting down the admission number from the I-94 card.
Questions 11-15. These questions are self-explanatory.
Question 16. Answer this question "(C)(15)(i)."
b, Extension Petition Documents
You must submit your I-94 card. You should also submit the original Notice of Action I-797, a letter from your employer stating that your extension is required and a copy of your personal U.S. income tax returns for the past two years, including W-2 forms.2. Step Two: Visa Revalidation
You can have your visa revalidated in the U.S. or at a consulate.
a. Visa Revalidation: U.S. Filing
If you are physically in the U.S. and your H-1A status extension has been approved by INS, you can have your visa revalidated by mail without leaving the country. To do this, you must ail out form OF-156, following the directions in Section F3, and send it to the Department of State. With the form you should submit as documents your passport, current I-94 card, Notice of Action form I-797 and a detailed letter from your employer describing your job duties. You should enclose a self-addressed, stamped envelope, or a completed Federal Express airbill. Send the entire package by certified mail to:
Department of State Visa Services
2401 "E" Street, N.W., Room 1306
Washington, DC 20520
Telephone: 202-647-0510
The passport will be returned to you with a newly revalidated visa in a few weeks. Nationals of some countries like Mexico are charged a fee for revalidating a visa, while nationals of other countries receive this service at no charge. Please note that whether or not there is a fee depends on the nationality of the applicant, not the place where the application for the visa was originally made. Call the State Department in Washington, D.C. to find out the amount of the revalidation fee, if any. If you send in your revalidation package without the correct fee, it will be returned to you, so check the amount in advance.If your accompanying relatives are physically in the U.S., their H-4 visas may be revalidated by sending in their passports and I-94 cards together with yours. We strongly advise gathering your family together inside U.S. borders so you can take advantage of this simple revalidation procedure.
b. Visa Revalidation: Consular Filing
If you must leave the U.S. after your extension has been approved but before you had time to get your visa revalidated, you must get a new visa stamp issued at a consulate. Reread procedures for Step Two, the application (consular filing). The procedures for consular extensions are identical. We would like to reemphasize that it is much more con venient to apply for a revalidated visa by mail through the State Department in Washington, D.C. than it is to extend your H-1A visa through a consulate. If possible, you should try to schedule filing your extension application when you can remain in the U.S. u
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