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TEMPORARY PROFESSIONAL WORKERS (H-1B)

The H-1B is perhaps the most common form of non-immigrant working visa.  The H-1B is available to individuals with at least a 4-year bachelor’s degree related to the position for which the employer sponsors them, where such position is a professional or specialized.  Various other requirements may apply on a case-by-case basis related to the beneficiary’s background and/or the US position.

 An H-1B visa may be obtained through the filing of a petition with the appropriate USCIS Service Center.  The USCIS provides a cap of 65,000 on the number of H-1B visas for specialty occupations issued each year for bachelor’s degree occupations, and 20,000 for master’s degree occupations.  If the cap is reached in a given year, the USCIS will not review new H-1B petitions until the subsequent April 1, at which time the cap is reset to zero. 

 The H-1B visa is a temporary visa that grants lawful resident status to its holder only for the term of the visa, which typically lasts up to six years.  It does not entitle its holder to permanent resident status in the United States. 

Labor Condition Application (LCA)
Prospective specialty occupation employers must obtain a certification of an LCA from the DOL prior to filing an H-1B sponsorship petition. This application includes certain attestations, a violation of which can result in fines, bars on sponsoring nonimmigrant or immigrant petitions, and other sanctions to the employer. The application requires the employer to attest that it will comply with the following labor requirements:

         The employer will pay the beneficiary a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for your position in the geographic area in which you will be working.  

         The employer will provide working conditions that will not adversely affect other similarly employed workers. At the time of the labor condition application there is no strike or lockout at the employer place of business. Notice of the filing of the labor condition application with the DOL has been given to the union bargaining representative or has been posted at the place of business.

Period of Stay
As an H-1B nonimmigrant, you may be admitted for a period of up to three years. Your time period may be extended, but generally cannot go beyond a total of six years, though some exceptions do apply under sections 104(c) and 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21).

Your employer will be liable for the reasonable costs of your return transportation if your employer terminates you before the end of your period of authorized stay.  Your employer is not responsible for the costs of your return transportation if you voluntarily resign your position.

H-1B Cap
The H-1B visa has an annual numerical limit "cap" of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap.  Additionally, H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities or a nonprofit research organization, or a government research organization are not subject to this numerical cap. 

For further information about the numerical cap, see the Fiscal Year (FY) 2012 H-1B Cap Season Web page.

Family of H-1B Visa Holders
Your spouse and unmarried children under 21 years of age may seek admission in the H-4 nonimmigrant classification. Family members in the H-4 nonimmigrant classification may not engage in employment in the United States.