H1-B Visa - the Basics
Here is another in a series of postings I intend to do on H1-B visa because H1-B season is soon upon us. As I mentioned in an earlier posting, the H1-B filing date this year will be April 1, 2008 and it's not too soon to get started on getting applications ready for filing on that date.
Let's start with H1-B basics and I will follow up with subsequent postings about many other H1-B issues.
What is an H1B visa?
An H-1B visa is a nonimmigrant classification used by a foreign worker to obtain temporary employment in the U.S. in a specialty occupation. It is a very common method by which U.S. employers bring in professional level foreign employees.
What is a specialty occupation?
A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. Examples include engineering, mathematics, physical sciences, medical and health jobs, business specialties, accounting, law, theology and architecture among many others.
What is the H1-B annual "cap"?
There is an annual fiscal year limit of 65,000 aliens who may be issued an H1-B visa. There are an additional 20,000 H-1B visas that are available to graduates of U.S. masters degree (or higher) programs.
Are all H1-B visas subject to the cap?
No. If an applicant is filing for an amendment, extension or transfer of a current H1-B visa, the cap does not apply. The cap also does not apply to applicants filing H-1B visas through institutions of higher education, nonprofit research organizations and government research organizations.
Is an H1-B visa a nonimmigrant visa for temporary employment only?
Yes, but. One of the distinct advantages of an H1-B visa is that is it a “dual intent” visa. That is, it is a nonimmigrant visa but it can be obtained by someone who, in fact, intends to try to become a permanent resident. In many other instances, such an inconsistent intent could be considered fraudulent. For the H1-B visa holder, it is not.
What must an employer show in order to obtain an H1-B visa for a foreign worker?
The employer must show that the position being offered is in a “specialty occupation” as defined above and that the employee has the appropriate credentials for the job. The employer must verify that the H-1B worker will be paid the “prevailing wage” for the job and that employing the foreign worker is not harming conditions for U.S. workers. Importantly, the employer does NOT need to show that there is a shortage of qualified U.S. workers, thereby saving the time and expense of a labor certification.
How long can an alien be in H1-B status?
An alien can be in H-1B status for a maximum period of six years at a time, usually granted in two three year increments. Then the worker would have to leave the U.S. and remain outside the U.S. for one year before another H-1B petition could be approved. There is a situation beyond the scope of this summary that allows an alien to extend beyond the six year limit in situations involving labor certification applications and immigrant petitions.
Can an H1-B visa holder change employers?
Yes but the alien must obtain USCIS approval in order to do so. H1-B employment is employer specific, valid only for the petitioning employer. Accordingly, if a worker wants to change employers, new H1-B approval is required under all the same rules and regulations involved in obtaining the initial H1-B approval. Under the “portability” provisions of the law, an alien may begin the new employment immediately upon the filing of the new petition—the alien does not have to actually wait for approval of the change. As noted above, the annual numerical cap does not apply to an alien who is requesting a change of employers unless the change is from a cap-exempt employer to an employer that is not exempt from the cap.
What about the spouse and children of an H1-B visa holder?
The spouse and minor children of an H1B visa holder may enter the U.S. on derivative H4 visas. Unfortunately, the H4 spouse and children may not obtain employment authorization while in H4 status.
The next posting: the procedures for filing.
