The H-1B visa is a non-immigrant visa provided for under the Immigration and Nationality Act, section 101(a)(17)(H). The H1B visa allows United States employers to temporarily employ foreign national workers in specialty occupations.
The INA defines “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 biotechnology, chemistry, architecture, engineering, mathematics, physical sciences, social sciences, 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. The foreign worker must possess at least a bachelor’s degree or its equivalent and state licensure, if it is required to practice in that field.
A foreign H-1B professional’s work authorization is strictly limited to employment by the sponsoring employer. If the foreign professional in H-1B visa status quits or is dismissed from his or her sponsoring employer, he or she must either apply for and be granted a change of status to another non-immigrant visa status, secure another H-1B sponsoring employer or leave the United States. As of July 2017, the foreign H1B worker has a 60 day grace period to be back in status.
Duration of H-1B Visa
An H-1B visa is issued for three years and is extendable to a total of six years. There is an exception to the maximum length of stay of six years in certain circumstances, such as:
– If an H-1B visa holder has submitted an I-140 immigrant petition or a labor certification prior to his or her fifth year anniversary of having the visa, they are entitled to renew their H-1B visa in one-year increments until a decision has been made on their 1-40 green card application.
– If the H-1B visa holder has an approved I-140 immigrant petition, but is unable to initiate the final step of the green card process due to the priority date not being current, he or she may be entitled to a three-year extension of their H-1B visa until their adjustment of status can be completed.
If the H-1B visa holder does not qualify for the above exceptions and wants to continue to work in the United States after the maximum six years without having obtained permanent residence status, he or she must depart and remain outside of the United States for one year and then re-apply for another H-1B visa.
H-1B Visa Portability
While there is a maximum limit on the the length of stay, there is no requirement that the H-1B visa holder remain for any minimum period of time in the job the H-1B visa was originally issued for. If the H-1B visa holder can find a new employer to sponsor another H-1B visa, the foreign professional can transfer to the new employer at any time.
Dual Intent for H-1B Visa Holders
While the H-1B visa is a non-immigrant category visa, it recognizes dual intent, meaning an H-1B visa holder can have the intent to seek permanent legal residence in the United States while on this temporary visa.
Dependents of H-1B Visa Holders
Foreign professionals coming to the US on the H-1B visa can bring their immediate family members (spouse and children under 21) to the United States under the H-4 visa category as dependents.
An H-4 Visa holder may remain in the United States as long as the primary H-1B visa holder retains legal status. An H-4 visa holder is allowed to attend school, apply for a driver’s license, and open a bank account in the United States. As of May 2015, USCIS has allowed some spouses of H-1B visa holder to apply for work authorization to work in the United States. Spouses must file Form I-765 Application for Employment Authorization, and if approved the spouse will receive an Employment Authorization Document.
H-1B Visa Holder Traveling Outside of the US
As an H-1B visa holder, to travel outside of the United States for any reason, other than to Canada or Mexico, you must have a valid visa stamped on your passport for re-entry into the United States.
H-1B Application Period
Each year, generally on April 1, the H-1B season commences for the following federal fiscal year; employment authorizations are granted on October 1. Due to a pre-employment application limit window of six months, the first weekday in April is the earliest that an applicant may legally apply for the next year’s allotment of cap-subject H-1B.
There is a 65,000 H-1B foreign nationals cap for each fiscal year. The United States Citizenship and Immigration Services (USCIS) begins accepting H-1B visa applications on the first business day of April for visas that count against the cap for each fiscal year starting in October. Thus, H-1B visa applications that count against the FY 2018 cap are submitted starting April 2017. The USCIS accepts H-1B visa applications no more than 6 months in advance of the requested start date. Certain H-1B professionals are exempt from the annual cap.
H-1B Application Process
Those foreign nationals who meet the criteria for one of the three main types of H-1B visas go through a three-step application process.
The H-1B Visa Application Process
1. The US Sponsoring Employer files Labor Condition Application (LCA) with the US Department of Labor. In the Labor Condition Application, the sponsoring employer must demonstrate and attest that the company will comply with certain labor requirements.
The labor condition requirements are as follows:
- The employer will pay the foreign H-1B professional a wage that is equal to the wage paid to similarly qualified workers or, if greater, the standard wage paid for the position in the corresponding geographical location.
- The employer will adhere to working conditions that will not negatively impact existing, similarly employed US workers. There must be no strike or lockout at the time of the application and a notice of the application must be posted at the business location.
2. The US Sponsoring Employer files Form I-129 Petition for Non-immigrant Worker to the United States Citizenship and Immigration Services (USCIS).
Form I-129 Petition for a Non-immigrant Worker must be completed by the employer and submitted to the appropriate USCIS Service Center. The employer must submit a DOL-certified Labor Condition Application along with Form I-129.
3. After the H-1B sponsoring employer-submitted Form I-129 (along with the Labor Condition Application), the foreign prospective H-1B professional who is outside of the United States applies for entry into the United States via an H-1B visa at a United States embassy or consulate.
If you have any questions regarding the H1B visa process, you can contact me, Somair S. Alam, Esq. at e-mail email@example.com