Immigration Law

H1B Visa

H1B Visa

The H1B visa classification permits a foreign national to work in the United States for a temporary period. It is available for offers of employment that are in a specialty occupation.

Requirements:

  • For a specialty occupation H1B petition, the employee must have a bachelor’s degree or the equivalent experience.

  • The employer for an H1B petition must obtain a labor condition application (LCA) from the U.S. Department of Labor before filing the H1B petition with the USCIS.


Annual Cap:

Unfortunately H-1B visas/status are subject to an annual cap. Only 65,000 new H1B visa/status for regular H1B cases can be approved each fiscal year. The fiscal year for US Citizenship and Immigration Services (US CIS) starts on the first day of October of each year.


An H1B petition can be filed up to six months in advance (first day of April of each year.) In the fiscal year of 2007, more than double the amount of new H-1B petitions were filed on the first available date April 2, 2007 (April 1, 2007 was a Sunday) and petitions were selected by a lottery. Similarly, significantly more than the allowed regular H-1B petitions were filed on the first date allowed for the 2008 fiscal year (April 1, 2008). Due to a slowdown in the economy, fewer H1b petitions were filed in the 2009 fiscal year. However, this is likely a temporary situation, and the cap issue remains a problem.

Not all H1B visas/status are subject to the above annual cap. The cap does not apply to most beneficiaries that are already (or have been) in H-1B visa/status. Furthermore individuals working for some non-profit organizations, Universities, and some University affiliated organizations may not be subject to the cap. In addition, individuals with a Master’s or a higher degree from an U.S. institution are subject to a higher cap.

Portability:

An employee who is presently employed in H1B status may utilize the portability provisions of the American Competitiveness in the Twenty-First Century Act (AC21) to transition their H1B to a different employer

Duration of Stay:

H-1B Status may be granted for up to three years. As long as the specialty occupation continues and the company continues to be capable of paying prevailing wage, H1B status can be extended up to a maximum of six years. In addition, individuals with labor certification (PERM) or employment based permanent residence, or related adjustment of status application that has been pending for more than one year can obtain extensions of their H1B status/visa beyond the sixth year while their application is pending (one year at a time).

Family Members:

Spouses and children (under 21 and not married) are eligible to obtain H-4, which is a derivative status. They are allowed to accompany the H-1B Specialty Occupation worker and remain in the United States. Individuals holding H-4 status may also attend schools.