H-1B Visa: Temporary Workers in Specialty Occupations


The H-1B visa is one of the more well-known and popular nonimmigrant visas available to aliens, designed to allow U.S. employers to recruit and employ foreign professionals in “specialty” occupations for a finite duration of time. In total, H-1B visa holders are allowed to legally work and live in the U.S. for up to six consecutive years.

Who Qualifies?

To be eligible for H-1B status, foreign nationals must possess at least a bachelor's degree or its equivalent. In many cases, this requirement can be satisfied by having a three-year degree in addition to three years of relevant post-graduate work experience.

Not necessarily any profession qualifies for an H-1B. As noted, a foreign worker must be in a “specialty” occupation. Generally speaking, qualifying occupations are those requiring highly specialized and technical knowledge in fields including, but not limited to:

  • Accounting
  • Architecture
  • Biotechnology
  • Computing
  • Engineering
  • Education
  • Finance
  • Healthcare and medicine
  • Information technology
  • Law
  • Marketing
  • Mathematics
  • Telecommunications
  • The arts
  • The physical and social sciences

Aliens cannot self-petition for H-1B visas. Rather, employers serve as the petitioners, with their foreign workers as the beneficiaries.

Spouses and unmarried children under the age of 21 can also reap the benefits of a principal’s H-1B status by legally joining the worker in the U.S. under the H-4 visa classification. If these family members themselves wish to work while in the country, then they can do so only after successfully applying for employment authorization with U.S. Citizenship and Immigration Services (USCIS).

Forms and Process

First, an employer must agree to submit an H-1B petition to USCIS on behalf of a foreign employee it wishes to hire for the kind of professional position listed above. The process unfolds as follows.

First, the employer, with the help of an experienced attorney, obtains a prevailing wage determination. This finding serves to ensure that the employee will not be paid less than similarly employed American workers in a given region. Next, a petitioning employer files a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL). Submitted via ETA Form 9035 & 9035E, LCAs serve to verify that the prospective alien employee will be paid the prevailing wage for the job opportunity in question and that employing the foreign worker will not adversely affect the working conditions of similarly employed U.S. workers. Once the underlying LCA is approved, the employer can then file Form I-129 on behalf of the alien worker with USCIS. (For an in-depth look at the H-1B application process, click here.)

Initial H-1B status can last for up to three years. Subsequently, H-1B workers can have their visas reauthorized for an additional three years, for a sum total of six consecutive years. In some cases, H-1B status can be extended beyond this limit. (For more information on prolonging H-1B status, refer to our article here.) Importantly, the time an H-1B visa holder spends outside the U.S. does not count against the six-year limit, as foreign workers are permitted to “recapture” time spent abroad while their H-1B status is valid.

Terminations and Resignations

If an employer fires an H-1B worker before said worker’s status expires, then the employer is responsible for the cost of a one-way ticket to the worker’s last place of (foreign) residence. This protection does not apply to H-1B workers who resign prior to their visa’s expiration. It is important to note that employment is typically “at will,” which means that an employer can terminate an employee for any reason or no reason at all.

In the wake of an involuntary termination or voluntary resignation, H-1B workers have three options:

  1. Apply for a change of status under a different nonimmigrant classification (in which case a transfer petition must be filed within 60 days of the last day of employment);

  2. Obtain employment with another company; or

  3. Leave the U.S.

According to the final rule published by USCIS in 2016, H-1B workers have a 60-day grace period to change or extend their status or to change employers after losing employment.

Limits

The number of H-1B visas available to qualifying foreign workers per year isn’t unlimited. Rather, Congress has authorized a maximum number of 65,000 H-1B visas to be issued annually, plus an additional 20,000 per year for H-1B beneficiaries with at least a master’s degree from a U.S. college or university or its foreign equivalent. This numerical limitation is commonly referred to as the “H-1B cap.” Nevertheless, it is important to note that there are some exceptions to the H-1B cap, including for employers that are institutions of higher education or nonprofit research organizations. More information about the cap and exemptions from the cap can be found on our page on the topic here.

Our experienced immigration attorneys are here to guide professionals through the complicated H-1B application process, and minimize any and all confusion or challenges. We understand how important an H-1B visa is to you, whether as the employer or the prospective employee. Our seasoned staff and years-long track record of success make Zhang & Associates the natural choice to facilitate your H-1B petitions.

For more detailed information on the H-1B category, including minimum requirements and USCIS policies, refer to the following links:

General H-1B Topics

H-1B Articles

 

Updated 04/26/2017