NON-IMMIGRANT VISAS

H-1B Specialty Occupation

Overview

H-1B visa classification is available to foreign nationals who wish to enter the U.S. temporarily to work for U.S. employers in a specialty occupation. A specialty occupation is defined as an occupation that requires highly specialized knowledge and a minimum of a U.S. or U.S. equivalent bachelor's degree in a related field of study. (In certain cases, documented work experience may be factored into an equivalency finding in lieu of a bachelor's degree.)

Common specialty occupations include, but are not limited to those professional positions found in the fields of: accounting, architecture, business specialties, computer specialties, engineering, education, law, mathematics, medicine and health, physical sciences, social sciences, and theology. Other professions may also qualify as specialty occupations.

Requirements

H-1B classification requires a sponsoring U.S. employer offering a qualifying specialty occupation position for which the foreign worker is qualified and for which the respective Department of Labor prevailing wage will be paid.

Application Procedures

This classification does require an approved petition for employment. Prior to the foreign worker applying for an H-1B visa, the U.S. employer must obtain labor condition application certification from the USDOL and petition approval from the USCIS. If the foreign worker is outside of the U.S., he or she must apply directly at the nearest U.S. Embassy or Consulate. (Please note: in some cases, the applicant must apply at a U.S. Embassy or Consulate in his or her home country. See the Visa Issuance section for more details.)

If the foreign worker is inside the U.S. and wishes to change to or extend his or her H-1B Non-immigrant visa status, his or her authorized employer must apply for approval from the USCIS in connection with the underlying petition for employment.

H-1B Numerical Cap

Under current law, the number of foreign workers seeking H-1B classification on an annual basis far exceeds the number of H-1B visas available. Accordingly, the annual allotment of H-1B visas tends to be exhausted early in the year, months before such classification and/or visas become valid. This results not only in the problem of a number of qualified beneficiaries being precluded from eligibility to apply for H-1B status each year, but also in the problem of "cap gap"—a time period during which persons seeking and approved for H-1B status face a break in status and/or work authorization, and ineligibility to be granted a change of status within the U.S.

There are a number of strategies available to address such cap-related problems, and consultation with a licensed immigration attorney is highly recommended.

Time Limits

Temporary specialty occupation workers may be initially admitted to the U.S. or granted a change of status to H-1B visa classification for up to three years with the option to extend for a total of six years by filing a timely petition for extension of stay with the US CIS. After six years in H Non-immigrant visa status (calculated to include any time spent in L status), the foreign worker must remain outside the U.S. for one year before another H-1B petition can be approved. However, if the foreign worker is the beneficiary of a Labor Certification Application and/or I-140 petition which was filed more than 365 days as of the expiration of the allowable six-year period, he or she may be eligible for a one-year or three-year extension beyond the six year limit, subject to eligibility requirements.

As is the case with all Non-immigrant visa classifications, the duration for which one is allowed to remain in the U.S. in H-1B status is governed by the expiration date indicated on the most recently issued I-94 card, except in cases where a non-frivolous extension of stay request has been timely filed. (See How do I know if I am lawfully present in the U.S. in the FAQ section for more details.)

Employment

H-1B Non-immigrant status is an employer-specific work authorized status pursuant to the terms and conditions upon which H-1B status was granted.

A foreign national on this visa may be eligible to apply for permanent residency if his/her employer requires his/her services permanently. Please click here for information on employment immigration.

Dual Intent

An H-1B Non-immigrant visa worker may simultaneously pursue permanent residency without negatively impacting his or her continued eligibility for H-1B Non-immigrant visa status. Accordingly, the filing of a labor certification application, I-140 immigrant visa petition or I-485 adjustment of status application is not a basis for denying a change of status to, extension of stay in, or visa for H-1B status. This protective concept is known as the "dual intent doctrine" and is recognized under immigration laws for several Non-immigrant visa classifications, including H-1B.

Dependents

The spouse and minor children of H-1B visa holders may apply for derivative H-4 visa classification in order to accompany or follow to join the principal visa holder (at the consulate) or to remain in the U.S. with the principal visa holder (through a change of status application with the US CIS). H-4 status is conditioned on maintenance of valid H-1B status by the principal visa holder and dependent eligibility, and does not confer employment authorization.

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