There are several conditions that must be met in order to use the (H-1B)
status (visa) in the United States.
The H-1B is available for use for individuals employed in one of the follow
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 Beneficiary must be coming to the United States for temporary
employment as, normally, an intent to permanently reside and work in the
United States is considered violation of one's non-immigrant status.
However, the concept of "Dual Intent" is an exception to his
rule. "Dual Intent" is where, concurrently, the non-immigrant
H-1B employee has no intention to remain permanently in the United States
or has the intent to remain permanently. Also, the approval of a Labor
Certification Application (LCA or PERM) or the filing of permanent resident
visa petition does not impede another H-1B petition or extension because
of "Dual Intent."
Since an H-1B is permitted dual intent, maintaining a foreign residence
is not necessary for the H-1B foreign national. The Department of State,
as well as Citizenship and Immigration Service, both share this position.
Further, 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 foreign employee's
occupational specialty. This prerequisite applies to all H-1B visas including
fashion models and physicians. However, this condition is not needed for
individuals providing service related to Department of Defense such as
cooperative research, development projects or co-production projects.
LCAs are also required for H-1B1's and E-3's as well.
With respect to employers, special attestation requirements exists for
those whom previously committed deliberate violations of the law or for
those considered to be H-1B dependent.