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Discussion Starter #1
Hello

I would really appreciate ANY help here.

I am currently trying to coordinate a move to the US from London, with my (same-sex) partner. We have both received job offers from US firms, and thought that this is a good starting point.

The problem is, I have concerns over my partner’s validity for a H1B and would really like to discuss the alternative options (if any) with you. He has a degree, but not a Bachelor’s and not in a subject directly related to the job being offered.

Also, we have been told that the role – Assistant General Manager for a health club – is not considered a specialty occupation. He has been for several rounds of interviews in New York and has finally received a contract and offer letter, and it would be a shame if we had to decline.

Can you help?

Thanks in advance
 

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Unfortunately not all US employers are familiar with US immigration. Besides the fact that it will be impossible to proof that no other qualified candidate could be found for the position - do you see this employer waiting until October for him?
 

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First of all, thank you for your reply. Yes, they would be willing to wait as we expressed concern that the earliest start date would be 1 October. Our issue is how to proceed from here, given it seems the application is invalid from the get go. Unless I'm missing something
 

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First of all, thank you for your reply. Yes, they would be willing to wait as we expressed concern that the earliest start date would be 1 October. Our issue is how to proceed from here, given it seems the application is invalid from the get go. Unless I'm missing something
The thing to remember is that it's the employer's job to set the wheels in motion for getting a visa for their job candidate. You can't do anything with just a "job offer."

Take a look at this page from the US Dept. of Labor: U.S. Department of Labor - Find It By Topic - Hiring - Foreign Workers and notice the sentence: First, employers must seek certification through the Department of Labor.

Ball is in their court. (And the job offer should have contained something in it about the employer doing the footwork to apply for the appropriate category of visa.)
Cheers,
Bev
 

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Discussion Starter #5
Thanks Bev

So, sorry to be slow here, but his employer should apply for certification, and that would determine whether the job category is 'specialist' or not?

The employer is due to petition, but we thought we'd see an attorney first before committing savings to the move.

If the employer can convince the DoL that there is a need and this position is indeed a skilled category, would that put us in a better position for petition?

Sorry if I seem a bit slow, this is proving to be quite the minefield.
 

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The regulations define a "specialty occupation" as requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor including but not limited to architecture, engineering, mathematics, physical sciences, social sciences, biotechnology, medicine and health, education, law, accounting, business specialties, theology, and the arts, and requiring the attainment of a bachelor’s degree or its equivalent as a minimum

working in a health club will not fit the criteria
 

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Thanks Bev

So, sorry to be slow here, but his employer should apply for certification, and that would determine whether the job category is 'specialist' or not?

The employer is due to petition, but we thought we'd see an attorney first before committing savings to the move.

If the employer can convince the DoL that there is a need and this position is indeed a skilled category, would that put us in a better position for petition?

Sorry if I seem a bit slow, this is proving to be quite the minefield.
Labor Certification for an assistant manager for a health club? Does the employer realize the amount of time and funds involved? Depending on demand for H1B it can mean a potential start date 10/2014 if at all.

You say "we". What visa will you be using?
 

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Discussion Starter #8
Thanks all

To answer the last question, I am in the process for a H1B with my job offer, which is in marketing with a H1B employer - so looking promising there.

I am really looking for a way that he can join me, whilst working at the same time but the law seems to be unforgiving toward couples in our situation

Thanks again
 

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Thanks all

To answer the last question, I am in the process for a H1B with my job offer, which is in marketing with a H1B employer - so looking promising there.

I am really looking for a way that he can join me, whilst working at the same time but the law seems to be unforgiving toward couples in our situation

Thanks again

You have to option of B2 - cohabitating partner. Often it gets granted for the duration of the other party's H1B. Otherwise there is always the option of education.
 

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Discussion Starter #10
Thanks for that. A B2 would, I believe, prevent him from working - so this won't work in our case unfortunately.
 

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Yes, I agree it will be tricky to get an H1B with this job position. It has to be a job that requires at least a 4-year degree. Is this the case with this job? Also, the company WON'T have to proof that no other qualified candidate could be found for the position if the company is not a H1B dependent employer. For a definition what this is, see here: http://www.dol.gov/whd/regs/compliance/FactSheet62/whdfs62C.pdf

I would start researching what companies have filed for a labor certification in the past and which ones got certified. You can use this database to do this:
H1B Sponsoring Companies Database - List of employers who have sponsored H1B visa in past

After that, I would research the prevailing wage for the position that the company is offering. Here is the official site:
FLCDataCenter.com

I think it matters less that the company is a health club. The fact that this is an assistant manager position is more important that the nature of the company or their product. It is much more important to prove that a 4-year degree is necessary for this position and that your partner has special experience/training that he brings to the table. However, you mentioned your partner doesn't have a Bachelor's degree. I think a Bachelor's (4 year degree) is the minimum requirement for an H1B. A Master's degree is best.

If he cannot get an H1B, then his only other options are a student visa, B2 - cohabitating partner or an investor visa such as E2.
 

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Discussion Starter #12
This is very helpful, thank you.

He does not have a 4yr Bachelor's but can make up for this through relevant work experience so far. We will speak again with the employer to see if they can do anything other than wait a year and apply for a L1 transfer from London subsidiary (another option).

Thanks also for the research points, I will check out those links now. the investor visa sounds good, but neither of us have $1m to spare unfortunately :(
 

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For the E2 investor visa, you don't have to have $1M. I have read that anything over $100,000 would work. But that's a lot of money too. In some rare cases, even figures under 100k were granted, but then I guess you need a really good business plan and good justifications and a good lawyer!
Regarding your question, this database just shows which labor certifications were granted (certified). It doesn't mean that the actual H1B visa (the second step after the labor certification is granted) was approved. It basically just gives you an initial idea what companies have attempted to sponsor people in the past and if the first step was approved.
Also, since he doesn't have a Bachelor's degree, I'm not sure if work experience is good enough for an H1B.
One big disadvantage of the H1B visa is that you are dependent on the employer's mood. In case you get fired, you're immediately out of status and have to leave the country asap.
 
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