Definition
The H1-b category is a nonimmigrant classification that is used by foreign workers who are employed temporarily in a specialty occupation, such as engineers, professors, researchers, and software programmers or as a fashion model of notable merit and talent. Specialty occupations are further defined as those that require theoretical and practical application of expert knowledge and a minimum of a bachelor’s degree (or equivalent).
Specialty Occupations
In determining whether a job qualifies as a specialty occupation, the USCIS looks at the job title, the job duties that will be requested of the foreign worker, and the level of complexity of the business, as well as other elements. Specialty occupations include, but are not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, various business specialties, accounting, law, theology, and the arts.
H1-B Visa Cap
For fiscal year 2009, there are 65,000 H1-B visas available. In addition to this number, 20,000 foreign workers are granted visas on an annual basis if they have received an advanced degree in the U.S. Workers who are currently in the United States with an H1-B visa are not subject to the annual quota. Furthermore, a foreign worker who has held H1-B status within the past 6 years is not subject to the annual quota.
Dual Intent
Unlike other nonimmigrant visa categories, the H1-B visa allows foreign workers to file applications for immigration to the United States, considered an adjustment of their status, without affecting the status of their H1-B visa. Other nonimmigrant categories require an intention to return to a person’s home country (nonimmigrant intent) in order for the visa to be issued. Under the H1-B visa, this requirement has been removed and foreign workers are not required to have a foreign residence that they plan to return to in order to have their visa issued.
Eligibility Criteria
In order to qualify for this type of visa, a foreign worker seeking H1-B status must either:
1. Acquire a license from a state to practice in their specialty occupation when such a license is
required to practice;
required to practice;
2. Have a bachelor’s degree or higher in their area of specialty; or
3. Have experience in the specialty equivalent to the completion of a bachelor’s degree in
addition to holding a position of expertise that demonstrates the worker’s specialty.
addition to holding a position of expertise that demonstrates the worker’s specialty.
The Petition Process
An H1-B petition can only be filed by a U.S. employer. A U.S. branch or subsidiary company is considered to be a U.S. employer under this requirement if the U.S. entity engages a person to work within the U.S, has the authority to hire, fire, pay, and supervise employees, and has an IRS Tax ID number (also referred to as an Employer ID Number).
The petitioning employer is also required to file a Labor Condition Application with the Department of Labor that must include a statement of the payment of prevailing wages for the position and the working conditions offered. This document must be certified with the Department of Labor before the H1-B petition can be filed with the USCIS.
A foreign worker under the H1-B visa is permitted to work for more than one employer while in the United States. However, each employer has to file an H1-B petition before the employee can begin their employment in the United States for that employer. The same applies in the situation that a foreign worker decides to change employers while in the United States under an H1-B visa. When a foreign worker decides to change employers under the H1-B visa, they are not required to wait until the new H1-B petition has been approved. Because of the H1-B portability rule, the foreign worker is allowed to start working for the new employer on the date that the new employer files the new H1-B petition.
Under this type of nonimmigrant visa, a foreign worker is also allowed to work part time as long as the hours of work are clearly outlined in the H-1B petition. Furthermore, as long as the relationship of employer/employee exists in compliance with the H1-B requirements, a foreign worker is allowed to go on vacation, take sick/maternity/paternity leave, go on strike or otherwise be inactive without affecting the status of the visa, just like other workers at the company.
Length of Stay
Under current regulations, a person with the H1-B visa can remain in the United States for a maximum of six years at a time. Once this time period has expired, the individual must remain outside of the United States for a minimum of one year before they are allowed to petition for another H1-B visa. However, here are some exceptions to the six year limit. In order to qualify for an exception, a person must be able to demonstrate the following:
1. The length of 365 days or more have passed since the individual filed a Labor Certification, form
ETA-9089, or an employment based petition form I-140 in the case that Labor Certification is not
required; or
required; or
2. Despite the fact that the foreign worker has had their employment based immigrant petition form
I-140 approved, they are currently unable to obtain a green card due to the retrogression of their
priority date.
I-140 approved, they are currently unable to obtain a green card due to the retrogression of their
priority date.
Under the first exception, a foreign worker will be able to extend their H1-B visa for one year period. A three year extension is allowed if the foreign worker falls into the second exception.
If, based on this information, you are still uncertain whether your credentials qualify you for the H1-B visa or the strength of your case for this type of visa, please feel free to email our offices with a copy of your resume or curriculum vitae at us@usemin.com. The attorneys at our office will then review your qualifications and reply to you with a written evaluation within two working days. This evaluation is free and does not create any obligation on your behalf to retain us following the receipt of this evaluation.
What to Expect from U.S. Law Group
The attorneys in our offices are skilled in the area of immigration law and will handle your case carefully and diligently. We strictly follow the deadlines set forth in our work procedures to process your individual case.
The Evaluation
The initial evaluation provided is made on a case by case basis, rather than with the use of a template to answer all requests. Each individual case presented to us is unique and requires careful analysis that cannot be accomplished through the use of a template. Even though our evaluations are made on a case by case basis, the basic information included will cover:
1. Whether your credentials meet the minimum standard of the H1-B requirements;
2. Whether your case has a strong likelihood of being approved under the H1-B category; and
3. Other options you may have to obtain a green card if approval of your case under the H1-B category is unlikely.
