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H1-B - Temporary Employer Based Visa To Work In
USA
What is an H-1B?
What is a specialty occupation?
Is there an annual limit on the number
of H-1B aliens?
How does one apply?
How long can an alien be in H-1B
status?
Who can an H-1B alien work for?
What if the alien’s circumstances
change?
Must an H-1B alien be working at all
times?
Can an H-1B alien travel outside the
U.S.?
Can an H-1B alien intend to immigrate
permanently to the U.S.?
What is an H-1B?
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.
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 on the
number of H-1B aliens?
Yes. The current law limits to 65,000 the number of
aliens who may be issued a visa or otherwise provided H-1B status in FY2004.
(The numerical limitation was temporarily raised to 195,000 in FY2001, FY2002
and FY2003.)
How does one apply?
H-1B status requires a sponsoring U.S. employer. The
employer must file a labor condition application (LCA) with the Department of
Labor attesting to several items, including payment of prevailing wages for the
position, and the working conditions offered. The employer must then file the
certified LCA with a Form I-129 petition plus accompanying fee of $130. (Prior
to FY2004, employers were required to submit an additional $1,000 fee to
sponsor the H-1B worker, unless specifically exempt.) Based on the USCIS
petition approval, the alien may apply for the H-1B visa, admission, or a
change of nonimmigrant status.
How long can an alien be in H-1B
status?
Under current law, 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:
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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
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365 days or more have passed since the filing of an
EB immigrant petition.
Who can an H-1B alien work for?
H-1B aliens may only work for the petitioning U.S.
employer and only in the H-1B activities described in the petition. The
petitioning U.S. employer may place the H-1B worker on the worksite of another
employer if all applicable rules (e.g., Department of Labor rules) are
followed. H-1B aliens may work for more than one U.S. employer, but must have a
Form I-129 petition approved by each employer.
What if the alien’s circumstances
change?
As long as the alien continues to provide H-1B
services for a U.S. employer, most changes will not mean that an alien is out
of status. An alien may change H-1B employers without affecting status, but the
new H-1B employer must file a new Form I-129 petition for the alien before he
or she begins working for the new employer. The merger or sale of an H-1B
employer’s business will not affect the alien’s status in many instances.
However, if the change means that the alien is working in a capacity other than
the specialty occupation for which they petitioned, it is a status violation.
Must an H-1B alien be working at all
times?
As long as the employer/employee relationship exists,
an H-1B alien is still in status. An H-1B alien may work in full or part-time
employment and remain in status. An H-1B alien may also be on vacation,
sick/maternity/paternity leave, on strike, or otherwise inactive without
affecting his or her status.
Can an H-1B alien travel outside the
U.S.?
Yes. An H-1B visa allows an alien holding that status
to reenter the U.S. during the validity period of the visa and approved
petition.
Can an H-1B alien intend to immigrate
permanently to the U.S.?
Yes. An H-1B alien can be the beneficiary of an
immigrant visa petition, apply for adjustment of status, or take other steps
toward Lawful Permanent Resident status without affecting H-1B status. This is
known as "dual intent" and has been recognized in the immigration law since
passage of the Immigration Act of 1990. During the time that the application
for LPR status is pending, an alien may travel on his or her H-1B visa rather
than obtaining advance parole or requesting other advance permission from
Immigration to return to the U.S.
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