The H-1B visa is a non-immigrant employment visa used by foreign nationals who will be employed temporarily in a specialty occupation. Specialty occupation is defined as an occupation that requires highly specialized knowledge and at least a bachelor’s degree in a related field. In certain cases, documented work experience may be accepted in lieu of a bachelor’s degree.
Specialty occupation includes accounting, architecture, business specialties, engineering, education,law, mathematics, medicine and health, physical sciences, social sciences, theology, and arts. Other professions may also qualify as specialty occupations.
The H-1B work visa requires a sponsoring US employer. The sponsor must file a labor condition application with the Department of Labor attesting to several items, including payment of prevailing wages for the position, and the working conditions offered.The H-1B employer must then file an I-129 petition with the US Citizenship and Immigration Services (USCIS). Based on the USCIS petition approval, the foreign national may apply for an H-1B visa stamp at an American Embassy or Consulate abroad or a change of non-immigrant status with the USCIS. An H-1B visa stamp allows an alien holding that status to travel abroad and reenter the US during the validity period of the visa and approved petition.
An alien may be admitted into the US in H-1B work visa status initially for up to 3 years with possible extension for three more years. After six years in H-1B status, an alien must remain outside the United States for one year before another H-1B petition can be approved. H-1B aliens may only work for the petitioning US employer and only in the H-1B activities described in the petition.
An H-1B alien can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident (LPR) status without affecting the H-1B status. This is known as “dual intent” and is recognized under the immigration laws. During the time that the application for LPR status is pending, an alien may travel on his or her H-1B work visa rather than obtaining advance parole or request other advance permission from the USCIS to return to the US.
H-1B Quota-The law limits the number of H-1B visas to 65,000 per year. Generally, the quota does not apply to H-1B aliens filing for extension of status or change of employer. However, H-1B aliens employed by quota exempt organizations, such as institutions of higher education or nonprofit research organizations, may become subject to the H-1B quota, if they apply to change jobs to a non-exempt employer. Under the H-1B Visa Reform Act of 2004, Congress allocated 20,000 additional H1B numbers for aliens who have received a Master’s or higher degree from a U.S. College or University.
H1B Transfer-Under the portability provisions of the American Competitiveness in the 21st Century Act (AC21), an alien previously issued an H-1B visa and/or granted H-1B status may transfer to a new H-1B job provided that the new employer has filed a non-frivolous petition (not without basis in law or fact) on behalf of the alien, and that the alien has not accrued unlawful presence in the US. In cases where the H-1B petitions are denied following commencement of employment under the portability provisions, employment authorization of the H-1B worker CEASES upon denial.
Due to the numerous H-1B layoffs in recent times, employers must understand their obligations upon termination of H-1B workers. Employers who dismiss their H-1B employees before the end of the approved period of employment are required to pay the transportation cost of returning the aliens to their last place of foreign residence. If the H-1B worker voluntarily terminates his or her employment prior to the expiration of the H-1B status, then the employer is not liable for the alien’s return transportation. The USCIS regulations also require the employer who no longer employs the H-1B non-immigrant to notify the USCIS of the termination in writing.
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The information on this website is not to be considered legal advice. Such information is intended to educate members of the public generally and is not intended to provide solutions to individual problems. Readers are cautioned not to attempt to solve individual problems on the basis of information contained herein and are strongly advised to seek advice from an experienced immigration attorney regarding specific case situations.
