The H-1B category is designed to attract skilled professionals in a specialty occupation to work in the U.S. on a temporary basis. The employer in an H-1B application process is the petitioner while the alien is the beneficiary. The alien must possess at least a bachelor’s degree or an acceptable foreign alternative.
The H-1B is suitable for engineers, professors, researchers, software programmers and other foreign professionals, who normally can work for a total of consecutive 6 years in the U.S. in H-1B status.
The U.S. employer must offer employment in a specialty occupation, either on a full or part time basis.
A specialty occupation requires theoretical and practical application of a body of specialized knowledge. Examples of specialty occupations include: engineers, nurses, professors, researchers, computer programmers and other professionals.
The educational requirement specifies that the alien possess at least a bachelor’s degree or its equivalent. If the applicant was awarded his/her degree from an institution not located in the U.S., that degree must be evaluated to determine if it is comparable to a U.S. awarded degree. If the alien possesses a U.S. degree or its equivalent, no prior employment experience is required.
If an alien does not meet the educational requirements, ‘degree-equivalent experience or training may be substituted, whereby three years of professional experience is considered equivalent to one year of college education.
Furthermore, if a license is required under state law to practice a specific specialty occupation, the alien must hold the appropriate license. The employer must also pay the minimum prevailing wage, as determined by State Employment Agency rules or other approved standard guidelines. The employer must attest to the following six (6) conditions:
1. The employer will pay the H-1B employee the higher of
a. the actual wage rate that it pays to all other individuals with similar experience and qualifications, or
b. the prevailing wage level for the occupation in the metropolitan statistical area of employment;
2. Employment of the H-1B worker will not adversely affect the working conditions of workers similarly employed in the intended area of employment;
3. There is no current strike/lockout involving the prospective H-1B worker’s position at his/her workplace;
4. The employer will provide notice of filing of the labor condition application to the employee collective bargaining representative for the H-1B occupation or, lacking such a representative, will conspicuously post such notice at the work site on or within 30 days of filing the Labor Condition Application;
5. The employer will maintain for public examination
a. a copy of the Labor Condition Application filed.
b. documentation of the salary paid to the H-1B employee,
c. an explanation of how the actual wage was determined, and
d. documentation of the basis used for the prevailing wage;
6. The employer must agree to pay the alien the reasonable cost of transportation to return to his or her home country if the employer terminates employment prior to the end of the authorized employment period.
Benefits of an H-1B
· Permission to work in the U.S.
The H-1B visa allows specialty occupation workers to enter the United States and work in a professional capacity for a maximum period of six years.
· Multiple year duration
The H-1B status is initially issued for a maximum period of three years and may be renewed for an additional period of three years. Generally speaking, the maximum duration of stay permitted in the United States for an H-1B (or H-4) holder is a cumulative six years.
H-1B status holders can extend their stay beyond the six-year limit in the following (3) situations:
1. An H-1B holder who is the beneficiary of an approved EB-1, EB-2 or EB-3 visa petition and is waiting to apply for an adjustment of status, may request an H-1B status extension from INS until his adjustment of status application has been adjudicated. The INS, however, has the discretion to approve or reject your status extension application.
2. An EB-1 or an NIW applicant that has an immigration petition that has been filed for more than 365 days and which is either pending or has been approved may file an H-1B extension.
3. A beneficiary of an EB-3 and EB-2 (other than a NIW), provided that the Labor Certification was approved and filed for more than 365 days, and which is either pending or has been approved, may apply for an H-1B extension. For details, please click here.
The specialty occupation worker is allowed to receive an income from the employer.
· No need to maintain a foreign residence
With the H-1B visa, there is no need to maintain a foreign residence, as is the case with many temporary visas.
· Ability to change employers during H-1B status Employers and/or location of employment may be changed during the six-year H-1B status duration, as soon as the new employer files a new H-1B petition on behalf of the individual, is in lawful H-1B status at the time of filing, and has not engaged in any unauthorized employment since his or her last lawful admission.
· Ability to change employers during the green card application process
An alien may change employers and it will not affect his adjustment of status provided he/she has filed an I-485 for at least 180 days and continues to work in the same or similar position for the new employer. For details, please click here.
· Spouses & children welcome
Spouses and children under twenty-one years of age may be entitled to enter and remain in the United States for the duration of the H-1B/H-4 status holder’s authorized duration of stay.
· Dependents permitted to attend school/college
An H-1B visa holder’s spouse and children under twenty-one years of age are permitted to attend school based on their H-4 status either on a part-time or full-time basis.
· H-1B visa holder permitted to attend school/college
An H-1B visa holder may be enrolled part-time in an educational program or higher learning institution without having to obtain an F-1 student visa.
· Multiple employers
An H-1B holder may have more than one employer as long as the INS approves an H-1B petition for each employer.
· Dual intent/opportunity to petition for future permanent residence
Immigration laws and INS regulations allow the H-1B holder to have “dual intent” with respect to his or her intent to immigrate to the United States. Therefore, an individual seeking the temporary right to work in the U.S. via an H-1B visa may also petition for permanent U.S. residence in the future. One does not preclude the other.