|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
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
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.
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.