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H1 Visa Detail

H-1B Visa

What is the H-1B Visa?

The U.S. H-1B visa is a non-immigrant visa, which allows a U.S. company to employ a foreign individual for up to six years. As applying for a non-immigrant visa is generally quicker than applying for a U.S. green card, staff that is required on long-term assignment in the U.S. is often initially brought in using a non-immigrant visa such as the H-1B visa.

The U.S. government issues the H-1B visa to foreign professionals for jobs that require a Bachelor's degree and specialized skills. The job must be considered a specialty occupation. Such specialty occupations include positions in the field of information technology, engineering, science, architecture, accounting, medicine and health, education, management, and other fields that require specialized knowledge.

The H-1B visa is initially granted for up to three years with a three-year extension allowed. In general, after the six-year period, an alien must remain away from the U.S. for one year prior to filing another H-1B visa petition. An exception to this rule is the granting of H-1B status beyond the six-year limit to qualifying aliens who have filed a labor certification (LC) application for purposes of obtaining permanent residency. When the LC has been in process for more than one year, or when both LC and I-140 (immigrant visa petition) approval have been attained, an H-1B that has not yet expired can be extended beyond the six years.

The U.S. limits the number of H-1B visas issued each year. The current H-1B visa cap is 65,000. An additional 20,000 H-1B visas are granted to individuals with Master's or higher degrees obtained from the U.S.

U.S. employers may begin applying for the H-1B visa six months before the actual start date of the visa.

Requirements for the H-1B Visa

To be eligible for sponsoring an H-1B visa, the employer must prove that:

• The position offered requires knowledge, both theoretical and applied, which is almost exclusively obtained through studies at an institution of higher learning;
• The position requires a specific course of study which relates directly to the position;
• Attainment of a Bachelor's or higher degree in the specific activity (or its equivalent) is a minimum requirement for the position.
• That the sponsoring company or organization has sufficient work for the alien for the requested period of employment authorization. Evidence may be requested in the form of contracts, work orders, etc. to support the petition.

The alien must have:

• The degree required for the occupation or possess experience in the specialty equivalent to the completion of such degree prior to the filing of the H-1B petition; non-graduates may be employed on an H-1B visa where they can claim to be “graduate equivalent” by virtue of twelve or more years experience in the occupation;
• Full state licensure to practice in the occupation, if such licensure is required to practice in the occupation.

Positions that are not "specialty occupations", or for which the candidate lacks the qualifications/experience for an H-1B visa, may be filled using an H-2B visa.

Applying for the H-1B Visa

Aliens who seek the H-1B visa must have a sponsoring U.S. employer. An alien cannot apply for an H-1B visa as an individual. The employer must file the H-1B petition on behalf of the prospective employee. Employers must pay H-1B employees the prevailing or average wage for the position offered.

To sponsor the alien, the employer must first file a Labor Condition Application (LCA) with the U.S. Department of Labor. By completing and signing the LCA, the employer agrees to several attestations regarding an employer's responsibilities, including the wages, working conditions, and benefits to be provided to the nonimmigrant.

The employer must then submit a copy of the approved LCA to U.S. Citizenship and Immigration Services (US CIS) with a completed petition, along with the required supporting documentation, requesting the H-1B classification.

An H-1B petition may be filed for either a full-time or part-time position.

Once the H-1B petition has been approved by the US CIS, if the alien is overseas, he or she must take the H-1B approval notice to the American Consulate to obtain the H-1B visa and then enter the U.S. If the alien is already in the U.S., he or she can begin working for the sponsoring employer as soon as the H-1B approval notice is received. The employer shall not allow the nonimmigrant worker to begin work until USCIS grants the worker authorization to work in the U.S.

If the alien wishes to change employers during the H-1B visa period, the new employer must file a new H-1B petition. In the case of such transfers, employment with the new petitioner may commence upon receipt of the new H-1B petition by the US CIS.

Benefits of the H-1B Visa

• The alien does not have to maintain foreign residence and show intent to return to his or her home country while applying for the visa.
• The alien’s dependents can stay with him or her as long as the alien maintains his or her H-1B status. The dependents can also attend school.
• Aliens can freely travel in and out of the U.S. provided they have a valid visa.
• The H-1B visa does not prevent the alien from taking the necessary steps to immigrate permanently. Dual intent, in which an alien chooses to apply for Lawful Permanent Resident status while holding an H-1B visa, is supported by the Immigration Act of 1990.

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