H1B Visa
WORK VISA: H1B VISA PROGRAM
Information on H1B Visa for Specialty Occupations
What is an H-1B visa?
The H-1B is a nonimmigrant classification used by an alien who will be employed temporarily in a specialty occupation or as a fashion model of distinguished merit and ability. The H-1B visa provides the spouse and unmarried children under the age of 21 to stay in the US with an H4 category.
What is a Specialty Occupation?
A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.
Is there an annual limit for H-1B visas?
Yes. The current law limits to 65,000 the number of aliens who may be issued a visa or otherwise provided H-1B status per year. However, 6,800 visas out of these 65,000 are reserved for Chile and Singapur under certain free trade agreements between these countries and the United States. Therefore, only 58,200 new H-1B numbers are available each fiscal year. (USCIS reached H-1B cap for FY 2006 on August 12, 2005)
How does one apply?
H-1B status requires a sponsoring U.S. employer. Based on the USCIS petition approval, the alien may apply for the H-1B visa, admission, or a change of nonimmigrant status. At Alcala Law Firm, pc, we can consult with you to determine that the nature of the position and the beneficiary’s background are appropriate for the H1B, and suggest alternatives if the initial proposal is not a viable option. We can advise both the employer and prospective employee regarding the H1B documentation requirements and legal issues. We can also prepare paperwork and submit it to the Department of Labor and USCIS. If applicable, we can prepare and file applications for dependent family members, as well. For those who require or choose consular processing, we can assist with applying for the H1B and H-4 (dependent) visas at the appropriate consulate abroad if needed.
How long can an alien be under H-1B status?
Under current law, the initial visa may be granted for up to three years. It may then be extended, in the first instance for up to three further years; therefore, an alien can be in H-1B status for a maximum period of six years at a time. After that time an alien must remain outside the United States for one year before another H-1B petition can be approved. Certain aliens working on Defense Department projects may remain in H-1B status for 10 years. In addition, certain aliens may obtain an extension of H-1B status beyond the 6-year maximum period, when:
- 365 days or more have passed since the filing of any application for labor certification, Form ETA 750, that is required or used by the alien to obtain status as an EB immigrant, or
- 365 days or more have passed since the filing of an EB immigrant petition.
H-1B Visa Reform Act of 2004 (20,000 H-1B visas exempted from the annual cap for foreigners with masters or higher-level degrees from U.S. institutions of higher education)
The Act provides new exemptions from the annual H-1B cap. The first 20,000 H-1B beneficiaries who have earned a master’s degree or higher from a U.S. institution of higher education are not subject to the annual H-1B cap of 65,000. After those 20,000 slots are filled, USCIS is required to count those cases against the cap for the remainder of the fiscal year. This provision came into effect on March 8, 2005.
