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Nonimmigrant Work Visas

I was offered a job in the United States on a contract basis. They said they couldn't hire me as a permanent employee. Can I work in America on a temporary basis?

Yes. This is what is commonly referred to as an "H1-B visa." The Immigration and Nationality Act provides several categories of nonimmigrant visas so people can work temporarily in the United States. There are annual numerical limits on some classifications. For fiscal year 2004, the limit was 65,000. However, the president signed a congressional bill exempting up to 20,000 foreign nationals with Masters' degrees or higher from U.S. institutions of higher education from the H1-B limit. This bill took effect March 8, 2005.

The H-1B classification applies to persons in specialty occupations that require theoretical and practical applications of highly specialized knowledge. This generally requires the applicant to complete a specific course of higher education. Occupations that fall under this classification include: architecture, engineering, mathematics, medicine and health, accounting, law and technology.

What forms do I have to file to enter the United States as a temporary worker?

Your prospective U.S. employer or agent must file Form I-129, Petition for Nonimmigrant Worker, with the USCIS. Your employer will be sent a notice of approval (Form I-797). You should apply at the U.S. Embassy or Consulate in your home country. You will need to file a completed and signed Form DS-156, and some men will need to file a completed and signed Form DS-157. You will also need a valid passport good for 6 months beyond your intended stay.

Can I bring my spouse and children to the United States while I am working on a temporary visa?

Yes, your spouse and unmarried, minor children are classified as nonimmigrants so they can accompany or join you as the principal applicant. But note that your spouse or child cannot accept employment while in the United States. As the principal applicant, you must show that you will be able to support your family in the United States.

Can I apply for permanent resident status while in the United States on an H1-B visa?

Yes. This type of visa is known as a "dual intent" visa. It allows you to enter the country for a temporary period to work, while at the same time allowing you to apply for permanent residence and thus a "green card."

I want to switch employers. Do I have to stay with the employer who originally sponsored my H1-B visa?

No. You can switch employers. Your new employer must file an H1-B petition on your behalf with the USCIS.

My application for a visa was denied. Can I appeal?

In most cases, you can appeal the decision. The Form I-292 denial letter will tell you how to appeal. The Administrative Appeals Office (AAO) has jurisdiction over 40 petitions and applications. Generally, you may file a notice of appeal using Form I-290B along with the required fee with the office that made the decision within 33 days of receiving the denial. Once the fee is collected and the form is processed at the Service Center, the appeal will be referred to the Administrative Appeals Unit in Washington, D.C.

In addition to an appeal, you may file a motion to reopen or a motion to reconsider with the office that denied your petition. You must state the new facts you are providing in a motion to reopen, along with affidavits or other documentary evidence. If you choose to file a motion to reconsider, you must establish that the decision was based on an incorrect application of law or USCIS policy, and that the decision was incorrect based on the evidence in the file at the time the decision was made. Any motion to reopen or reconsider must be filed with the correct fee within 30 days of the decision.

Who can file an appeal regarding a visa application?

Only the person who submitted the original application or petition may appeal. The beneficiary of a visa petition cannot appeal the decision. For example, if a U.S. employer petitioned for an immigrant visa for an employee living abroad, only the employer can appeal the denial-not the employee.

Do I need an attorney to appeal?

No, you do not have to have an attorney. But if you choose to have an attorney represent you, your attorney must file a properly executed Form G-28, Notice of Entry or Appearance as Attorney or Representative. Both the attorney or representative and the original petitioner must sign the form.