How to Deal

Rules and Regulations to Legally Work in the U.S.

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By Lily Garcia
Special to the Washington Post
Thursday, July 16, 2009; 12:00 AM

I have a H-4 US Visa (dependent of H1B visa). What should I do in order to get legal work here in the U.S.?

According to Germaine Sobral, a veteran immigration attorney whose opinion I sought in answering your question, an H-4 child of an H-1B visa holder cannot legally work in the U.S. However, if you are an H-4 spouse of an H1-B visa holder, you may legally work in the U.S. if you apply for and are granted an H-1B visa of your own. If you were the spouse of a person with an E visa (which allows you to work at a company in which you invest) or an L visa (which is granted to intracompany transferees), for example, you would be allowed to work by virtue of your spouse's visa. In your case, however, you would need to qualify in your own right for employment.

The U.S. Citizenship and Immigration Services (USCIS) offers more than 80 different types of non-immigrant visas to qualified individuals. Those types of visas that allow people to work in the U.S. usually restrict the scope of the work to very narrow circumstances.

H-1B visas are by far the most popular type of non-immigrant work visa because they allow for a longer period of work and greater range of work options than other types of visas. Under an H-1B visa, you can work in the U.S. for up to six years total and you can take the visa with you from employer to employer. To qualify for an H-1B visa, your sponsoring employer only needs to demonstrate that they need you to fill a "specialty occupation," which is one that "requires theoretical and practical application of a body of highly specialized knowledge" and at least a bachelor's degree or its equivalent.

According to Sobral, the main limitation of H-1B visas historically has been the cap of 65 thousand visas imposed by law. H-1B applications can be filed starting April 1st of each year for employment to begin in October of the same year. Due to the high volume of applications, the entire inventory of H1-B visas is usually awarded to applicants that file during the first few days that the visas become available. For many years, legislation has been proposed to increase the cap on H-1B visas in order to meet the high demand of U.S. employers for professionals, especially in the field of technology. As a result of high U.S. unemployment, however, there are still H-1B visas remaining for fiscal year 2010, which begins this October 1st.

Sobral explains that a popular path for foreign workers is to enter the U.S. on a tourist or student visa and then navigate the different visa statuses until they have exhausted their non-immigrant visa options, married an American citizen, or found an employer to sponsor their application for permanent residence. The primary challenge that non-immigrant workers confront, in Sobral's experience, is remaining with a legal status while they explore different work visa options. If a person violates the conditions of his or her visa in any way, even unwittingly, the USCIS is usually unforgiving.

For further information on the subject of non-immigrant work visas, you can reach Germaine Sobral at gwsobral@mslaw.pro or visit www.uscis.gov.

Lily Garcia has offered employment law and human resources advice to companies of all sizes for more than 10 years. To submit a question, e-mail HRadvice@washingtonpost.com. We reserve the right to edit submitted questions for length and clarity and cannot guarantee that all questions will be answered.


© 2009 The Washington Post Company

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