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Criteria for H-1B

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 employment areas:

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.

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