Assembling the Visa Petition

The checklist below will help you and your employer assemble the necessary items for the visa petition.

checklist

A few items on this checklist require some extra explanation:

Form I-129 and H Supplement. The

basic form for the visa petition is immi­gration Form I-129 and its 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 use the supplement that applies to you.

The employer may choose to list more than one foreign employee on a single I-129 petition. This is appropriate if the employer has more than one opening to be filled for the same type of job. supplement-1, which is also part of Form I-129, should be completed for each additional employee.

Proof of specialty occupation. sometimes, as with positions for physi­cians, accountants, and similarly recog­nized professions, the highly specialized nature of the work is common knowl­edge. In such cases, the employment agreement will serve to prove both the existence and the level of the job. Where it is not evident that the position is a spe­cialty occupation, additional documents are required. Your employer should write out and submit a detailed description of all job functions, with an explanation of how advanced knowledge and educa­tion are essential to their performance. If it remains unclear that the job requires a high-level employee, your employer might need to get written affidavits from experts, such as educators in the field or other employers in similar businesses, stating that jobs of this kind are normally held by highly qualified and degreed in­dividuals.

Proof of employer’s ability to pay your salary. Your employer must be able to prove its existence and financial viability. If the employer is large and well known, it is usually enough to state the annual gross receipts or income, in the letter it submits describing the job oppor­tunity and duties. If the employer is very small, usCIs may request documents to verify the existence and financial sol­vency of the employer’s business. In that case, usCIs will specifically advise your employer of the documents it wishes to see, including tax returns, profit and loss statements, and the like.

Publicly held companies do not have to produce tax returns, accounting records, or bank statements. For them, annual reports of the past two years are accepted to prove ability to pay wages. Again, the larger the company, the less evidence the usCIs demands of its ability to pay additional salaries.

Special documents for physicians. Graduates of medical schools outside the U. S. or Canada may not get H-1B visas as practicing physicians unless they have passed the USMLE licensing exam or an equivalent exam and satisfy the state licensing requirements if they will provide direct patient care services. If
patient care will be provided, the phy­sician must also have an unrestricted license to practice in a foreign state, or have graduated from a u. s. medical school. Passing the exam, however, is not required of foreign medical graduates who come to the u. s. to work solely in teaching or research positions at a public or nonprofit institution. In those cases, any patient care activities must be inci­dental to the teaching or research func­tions.

Therefore, in addition to all other docu­ments required from members of the pro­fessions, the petitioning employer must submit either a certificate showing you have passed the usMLE or an equivalent exam, or a statement certifying that you will be employed as either a teacher or researcher and that any patient care will be undertaken only as part of the teach­ing or research. This written statement does not have to be in any special form but simply in the petitioner’s own words.

Foreign medical students attending medical school abroad may petition to be classified as H-3 trainees if the hospi­tal is approved by the American Medical Association or American Osteopathic Association. A hospital submits the peti­tion, for either a residency or internship, if the alien will engage in employment as an extern during his or her medical school training.

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