ASK VISALAW.COM We are happy to bring what we hope will be a new regular feature to Siskind’s Immigration Bulletin. Each week we will be answering questions provided to us from Y-Axis. Y-Axis is an H-1B jobsite that provides a direct interface for the H 1B holders and aspirants with leading Consulting Firms and US End-Clients/Recruiters. The website is www.y-axis.com.
H.V. writes with two questions. He is going to have his passport stamped with a new H-1B visa, and wants for his wife to be able to get an H-4 visa. They were only recently married and the wife’s passport still bears only her maiden name. He wants to know whether this will be a problem, or whether showing the marriage certificate will be sufficient. The second question is how easy would it be for his wife to convert her H-4 visa to an H-1B.
With respect to the first question, the marriage certificate will be sufficient to allow her to receive an H-4 visa, as long as it identifies the wife with the name in her passport. On the second question, there is no rule against changing from H-4 to H-1B status, nor is it one of the more risky changes, like from a visitor to a student visa. So whether the wife could obtain an H-1B visa would depend on obtaining a job offer from an employer willing to petition for her and on whether she has the necessary education and experience requirements. Because she would be beginning new employment, her case would be subject to the annual cap on H-1B visas, even though she had previously been in an H status.
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M.M. wants to know what papers a person should take with them when they go to the consulate to receive a renewal of their H-1B visa.
A person seeking to renew an H-1B visa should of course take their passport to the consulate. They should also take a copy of the approval notice of their first H-1B visa, as well as the approval notice for the visa they are going to the consulate to obtain. While it is not a requirement, they should also take a copy of the complete application that was filed with the INS. At the consulate they will be required to fill out OF-156, the application for a nonimmigrant visa. This form requires a picture of the applicant. The picture must be 1 ½ inches by 1 ½ inches, and the applicant must sign their name on the back. The applicant will also need to pay an application fee for the visa. In different countries, a different fee is required, so the applicant should ensure that they know the correct fee. Finally, it is helpful to bring recent paystubs and a letter from the employer stating that you are employed on all the same terms as approved in the H-1B visa petition.
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H.K. wants to know whether she qualifies for an H-1B visa. She has extensive experience in many computer programming languages, even though she is only a recent high school graduate. She wants to know if, despite her lack of a college degree, she can obtain an H-1B visa.
Unfortunately, the answer is probably no. While a college degree is not mandatory for an H-1B visa, the INS does require experience to show equivalency to a degree. Under current regulations, there are four ways to do this. - The visa seeker can obtain an evaluation from an official who can grant college level credit in programs designed to award degrees on the basis of work experience. However, there are very few schools of this sort.
- In certain fields the applicant can take a college level equivalency exam, although again, the fields in which such tests are offered are limited.
- The alien can seek certification from a nationally recognized professional association.
- The final way is the most common – to obtain an equivalency evaluation stating that a person’s experience is equal to a college degree. Under INS rules, it takes three years work experience to equal one year of education, the experience must have been in a specialty occupation, and the alien must have professional standing as evidenced by membership in professional associations or licensure.
Given that H.K. only recently graduated from high school, it would be unlikely that she would meet any of these requirements.
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J.M. has questions about marriage to a US citizen.
Her question seems to indicate that a US consular official told her that she could come to the US on a tourist visa and get married and then file for adjustment of status. While this is possible, it could be very dangerous. A tourist visa is a nonimmigrant visa, which means that the person entering the US on it does not intend to remain past their authorized stay. Coming to the US on a tourist visa with the intent to marry a US citizen and remain here clearly violates this rule and would be considered visa fraud. The safer way to proceed with marriage in this case would be to have the US fiancé file an application for a fiancée visa and have the foreign national enter on that. The marriage must occur within 90 days after entering, and then the US spouse can file the papers for the foreign spouse’s classification as an immediate relative and for their adjustment of status. < Back | Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk. | 
