Posted by Debbie McGoldrick at 4/22/2009 10:35 AM EDT


From F to H-1B

“I graduated from a university in Ireland, and did a master’s degree in the U.S. which I completed last year. I have been working on a year’s extension of my F visa ever since, but that is shortly coming to a close and I’d very much like to stay in the U.S. I have been told that I’m not eligible for the new J Irish student visas that are available. What would be the best way for me to stay in the U.S.?”


It seems as if you’d be a perfect candidate for an H-1B visa, which are temporary non-immigrant visas reserved for those working in specialty occupations who have at least a bachelor’s degree.

A specialty occupation, according to the U.S. Citizenship and Immigration Service (USCIS), “requires theoretical and practical application of a body of specialized knowledge … for example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.”

That’s a fairly broad list, as you can see, and it’s likely, given your background, that you’d be eligible for an H-1B visa. Each year there’s usually a scramble to secure the annual allotment of 65,000 H-1Bs, but for the first time in a very long time, for the upcoming fiscal year 2010, which begins on October 1, some 21,000 H-1B slots still remain available, according to USCIS.

Also, in accordance with the H-1B Visa Reform Act of 2004, 20,000 new H-1B visas for foreign workers with a master's or higher level degree from a U.S. academic institution are available each year. These 20,000 visas are exempted from the annual 65,000 cap. Though USCIS says it has received 20,000 applications for these visas, it is still accepting more because not all of those received will be eligible for final processing.

You’ll need two things off the bat to secure an H-1B visa – first, a job offer from a U.S. employer, and second, a qualified immigration law practitioner to deal with the paperwork and other legal requirements.

The employer will have to file what’s known as labor condition application (LCA) with the Department of Labor, which is meant to show that the wage on offer for the H-1B position is the prevailing one, and that working conditions are sufficient.

Once the LCA is granted the rest of the paperwork can be filed with USCIS, including Form I-129, the standard petition for a non-immigrant worker. If the paperwork is approved, you’ll be able to return home to collect the H-1B visa, which will be good for an initial three-year period.

A further three-year extension is possible, but after that six year total, the H-1B visa holder would have to leave the U.S. for one year before another H-1B could be obtained. Also, an H-1B holder can avail of the opportunity to become a permanent resident if it arises.

You are correct in saying that you would not be eligible for the new Irish J visas, which are given to Irish citizens either involved in a post-secondary course of study, or those who have finished studying but are applying for the visa no later than one year after graduation. Those visas are good for one year only, and are not renewable.