What is the H1B visa?

The H1B is a non-immigrant work visa category in the United States under the Immigration & Nationality Act. It allows U.S. employers to seek temporary help from skilled foreign workers.

The H1B classification is for “specialty occupations” only. The occupation must require a bachelor’s degree or equivalent for the application of theoretical and highly specialized knowledge. Likewise, the foreign worker must possess at least a bachelor’s degree or its equivalent and state licensure (if required) to practice in that field. H1B work-authorization is strictly limited to employment by the sponsoring employer. The regulations define a “specialty occupation” as requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, law, accounting, business specialties, theology, and the arts, and requiring the attainment of a bachelor’s degree or its equivalent as a minimum.

What is the difference between an H-1B status and an H-1B visa?

H-1B status is a non-immigrant status issued by the USCIS. An H-1B visa is a non-immigrant visa issued by a U.S. Embassy or Consulate abroad. Legal status allows you to stay legally within the U.S. while a visa allows you to enter the U.S. legally. Upon entry to the U.S. with an H-1B visa, one becomes an H-1B status holder.

For who is the H1B visa suitable?

The H1B visa is suitable for foreign professionals in specialty occupation jobs, holding at least a Bachelor's Degree or its equivalent. Here are some common examples:

1. Engineers: technology and software development and other IT Staff in the tech industry.
2. Scientists: researchers, teachers, bio-technology, physics and chemistry professionals.
3. Fashion Models: individuals in the fashion, clothing industry who are professional models.
4. Other specialty careers: graphic design, accounting, architecture, etc

What is the duration of the H1B visa?

The duration of stay is 3 years, extendible to 6. An exception to maximum length of stay applies in certain circumstances: (i) 1 year extensions if a labor certification application has been filed and is pending for at least 365 days; and (ii) 3 year extensions if an I-140 has been approved H1B visa holders may be sponsored for their green cards by their employers through an Application for Alien Labor Certification, filed with the U.S. Department of Labor. In the past, the sponsorship process has taken several years, and for much of that time the H1B visa holder was unable to change jobs without losing their place in line for the green card.

H-1B Beyond 6 years:

In two situations, an individual may file an Extension of Stay beyond the general 6 year limit. The first is where an individual has already had a Labor Certification (PERM) petition with the Department of Labor on file for more than one year, (A Labor Certification is usually the first stage of the Permanent Resident filing). In such case, he or she may extend their H-1B stay in one year increments until a final adjudication is made for Permanent Residence.

The second instance in which the individual may extend his or her stay beyond the six year limit is where an individual has already received an approval of the Form I-140 Immigrant Petition, and he or she does not have a current “Priority Date” in order to file the final Adjustment of Status to Permanent Resident (“Green Card”). In such instance, the employer will be authorized to extend the H-1B in three year increments until the Permanent resident petition reaches final adjudication. The I-140 immigrant petition is usually the second phase of most H-1B holders’ Permanent Resident process. Thus, so long as the company has completed this phase of the Permanent Resident process, they will be permitted to extend their employees’ H-1B status for three additional years at a time until the Permanent Resident petition is finally adjudicated.

What is the H-1B “quota”?

The yearly quota for H-1B visas is 65,000. Among the 65,000 standard spaces, 6,800 are set aside for the H-1B1 program under terms of the U.S.-Chile and U.S.-Singapore Free Trade Agreement. These 6,800 spaces are reserved for Singaporean or Chilean citizens. Therefore, the actual H-1B quota is 58,200 for aliens outside of these two countries. However, 20,000 new H-1B visas are available for those foreign workers who obtained a master’s or higher level degree from a U.S. academic institution.

What is the H-1B "cap"?

The H-1B “Cap” refers to the annual numerical limitation set by Congress on the number of workers authorized to be admitted on H-1B type of visa or authorized to change status if already in the United States. Therefore, there are two ways to be counted against the cap: applying for an H-1B visa or change of status to H-1B from another non-immigration status visa (such as F-1, L-1, J-1, etc.)

How long does it take to obtain an H-1B?

The usual processing time for an H-1B petition filed with the USCIS is 60 to 90 days. However, the alien worker or the sponsoring employer may request “premium processing” by paying a $1,000 premium processing fee. With premium processing, the case will be processed within 15 calendar days or the $1,000 premium processing fee will be refunded.

If you have more questions, visit our H-1B Frequently Asked Questions or if you would like to speak with an experienced immigration lawyer about the H-1B visa for professional foreign workers, contact us and schedule a time to meet via telephone or in person to discuss the situation in detail.