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The H-1B Visa for Professionals in Specialty Occupations

H-1B graphic


Introduction
The H-1B is a nonimmigrant visa for certain professional workers, permitting full-time or part-time legal employment in the U.S. A person whose employer has filed an approved H-1B petition may enter the U.S. from abroad via consular processing, or change to H-1B from another nonimmigrant status. A person in H-1B status may attend classes and even pursue a degree, but only if this activity is secondary to his or her employment.

Spouses and minor children (under 21) of persons granted H-1B status are generally admitted in H-4 status. Currently, H-4 spouses may not work or study for a degree, although classes for personal enrichment are allowable. Spouses who wish to pursue a degree may apply for a change of status from H-4 to F-1 (a student visa) upon acceptance by a U.S. college or university.

The H-1B visa is subject to annual quotas (“caps”). H-1B extensions are normally available for up to six years. If an H-1B holder is in the process of obtaining an employment-based Green Card, extensions beyond 6 years are possible. A foreign national who is in the U.S. on an H-1B may change jobs if a new employer applies for an H-1B transfer on his or her behalf. However, the six year limit for H-1B status still applies.


Eligibility Criteria
There are very specific eligibility criteria for an H-1B, and in recent years, USCIS has been interpreting these more narrowly. The foreign national’s employer is the one who files the H-1B petition. The petition and related evidence pertain both to the employer and the prospective employee. An approvable case has the following elements:

  1. The prospective employee’s position must be in a specialty occupation. Regular nursing is not considered to be a specialty occupation, but some specialized nurses may be eligible for an H-1B. Physicians may be eligible for H-1B status as researchers or clinical practitioners.
  2. The position must be temporary with a specified end date. H-1Bs can be initially granted for up to 3 years, though an employer may specify a shorter period.
  3. The applicant must have appropriate qualifications for the occupation in general and for the employer’s position.
  4. The petitioning employer must operate in the U.S. and have a U.S. Tax ID number. An H-1B employee can work for multiple employers as long as each files a petition with USCIS on his or her behalf. There is no specific number of hours that the employee is required to work for each employer.
  5. There must be a clear employer/employee relationship.
  6. The employer must obtain an approved Labor Condition Application (LCA) from the Department of Labor (DOL) for the position offered. DOL’s level of scrutiny is higher for LCAs filed by companies with a high proportion of H-1Bs in their workforce, who may be deemed “dependent employers”.
  7. There must be an H-1B visa available at the time the employer’s petition is received by USCIS. This rule does not apply to cap exempt employers or certain cap-exempt beneficiaries.


Process and Timing

Post workplace notices as required by the DOL. No more than 30 days prior to filing the Labor Condition Application (LCA), for at least 10 consecutive business days.
File LCA with DOL. Turnaround is required in 7 business days and this timeframe is generally observed by DOL.
File I-129 Petition for Nonimmigrant Worker with USCIS and pay applicable fees. A response from USCIS is possible within as little as two months, but more typically takes 3-6 months. For an additional “Premium Processing” fee of $1,225, USCIS will respond within 15 calendar days with an approval notice or Request for Evidence (RFE). If an RFE is issued, the premium processing fee ensures that the case is decided within 15 additional calendar days.
After approval: If worker is not already in the U.S., apply for H-1B visa at nearest U.S. consulate. At most consulates, visa stamps can be issued within a few days after H-1B approval. Consulates in India are an exception, and there may be requests for additional documents and substantial delays for “administrative processing”.

 


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