THE H-1B VISA

The H-1B is a non-immigrant work visa for a person who will be employed temporarily in a specialty occupation. An H-1B holder does not entitle the person to remain in the United States permanently, and does not provide the person with a green card.

The person applying for an H-1B visa must be employed in a specialty occupation, which is defined as a job that requires application of specialized knowledge and at least the equivalent of a bachelor degree (4-year degree). H-1B requirements are complicated, and getting the assistance of an immigration attorney is very important.

Applicants must show:

         they possess such qualifications

         the job is a specialty occupation

         the employer has a need for such position

 

Differently from a green card petition, the applicant of an H-1B visa does not need to show that there are no qualified U.S. workers. However, there are other representations made to the Department of Labor including paying the prevailing wage.

The H-1B visa is one of the few visas that allow dual intent, which means that while the person is temporarily in the U.S., can also apply for something that will allow them to gain permanent residence.

The H-1B visa permits the individual to work for the specific employer. For instance, if an alien is getting an H-1B visa with employer A, he or she cannot work for employer B or to be self-employed, except in limited cases, such as the H-1B for entrepreneurs.

You can remain in H-1B visa status for three years, up to six years. Moreover, an alien can obtain one-year extension beyond the 6 years if he or she meet certain requirements.

The H-1B cap is a limit of how many new H-1B visas can be issued each fiscal year. The H-1B cap opens on April 1 each year. The general limit is currently 65,000. There is a separate cap, which is currently 20,000, for those who have a master’s degree or higher from a U.S. institution of higher education. People already in H-1B status are not affected by these caps. So, it does not apply to any of the following situations:

         Extending the amount of time a current H-1B worker may remain in the United States

         Changing the terms of employment for current H-1B workers

         Current H-1B workers wishing to change employers

         Current H-1B workers wishing to work concurrently in a second H-1B position.

         Further, nationals of Singapore and Chile count towards a separate cap of 6,800 (5,400 for Singapore and 1,400 for Chile).

Lastly, if the alien will be employed at an institution of higher education, a related or affiliated nonprofit entity, a nonprofit research organization or a governmental research organization, these H-1B petitions are exempt from the caps.