H-1B Visa

H-1B Nonimmigrant Visa: Specialty Workers

The H-1B category is designated for temporary professionals to work in the U.S. in a “specialty occupation,” which is generally defined as a position that requires at least a Bachelor’s degree or the equivalent. The applicant must prove eligibility for the H-1B category with documentation of sufficient educational credentials, licensure, and/or experience.

Work authorization for H-1B foreign specialty workers is employer-specific (i.e. limited to employment with the approved employer/petitioner).

Numerical H-1B Visa Limitations

Each year, Congress limits the number of new H-1B nonimmigrants admitted to the U.S.; it is currently capped at 65,000. Each year, USCIS accepts petitions beginning April 1 until the cap is filled. Petitions are subject to random lottery selection for review and adjudication. If the application is approved, the H-1B visa would be valid for use beginning October 1. Upon approval, the applicant must attend a visa appointment at a U.S. Consulate or Embassy abroad (unless Canadian).

The first 20,000 petitions filed on behalf of beneficiaries with a U.S. Master’s degree or higher are exempt from the numerical cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities, a nonprofit research organization, or a government research organization are not subject to this numerical cap.

Prerequisites to Filing an H-1B Petition

There are numerous obligations of an H-1B employer that must be considered:

  • The petitioner must be a viable entity that can pay the applicant the prevailing wage for someone in a similar position in the location where the work is primarily performed.
  • A Labor Condition Application (LCA, or ETA Form 9035) must be certified by the Department of Labor (DOL) before the petition is submitted to USCIS.
  • The employer must also document compliance with the LCA requirements in a “Public Access File” (PAF). The LCA and PAF contain standard attestations that the employer must make, as well as basic wage and location information about the proposed H-1B employment, including rate of pay, period of employment, and work location.

Dual Intent

An individual may apply for permanent residency (“green card”) and hold H-1B nonimmigrant status simultaneously.

Dependents

Dependents (spouses and unmarried children under 21 years of age) of H-1B workers are entitled to H-4 status with the same restrictions as the principal. Dependents may attend school. As of May 26, 2015, certain H-4 dependent spouses of H-1B nonimmigrants can apply for work authorization as long as the H-1B nonimmigrant has already started the process of seeking employment-based lawful permanent resident status.

Period of Stay

An H-1B nonimmigrant may be admitted for an initial period of up to three years. Extensions may be granted, but generally cannot go beyond a total of six years, though some exceptions do apply under sections 104(c) and 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21).

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