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H-1B Visa

H-1B Visa: Temporary Workers in Specialty Occupations

The H-1B is a non-immigrant visa in the United States under the Immigration & Nationality Act, section 101(a)(15)(H). It allows U.S. employers to employ foreign temporary workers in specialty occupations.

[1] Specialty Occupation
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 specialities, theology, and the arts, and requiring the attainment of a bachelor’s degree or its equivalent as a minimum. 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. H-1B work-authorization is strictly limited to employment by the sponsoring employer.

[2] Duration of stay

The duration of stay is three years, extendible to six. An exception to maximum length of stay applies in certain circumstances:

one-year extensions if a labor certification application has been filed and is pending for at least 365 days; and three-year extensions if an I-140 has been approved.

[3] Congressional yearly numerical cap
The current law limits to 65,000 the number of aliens who may be issued a visa or otherwise provided H-1B status. (The numerical limitation was temporarily raised to 195,000 in FY2001, FY2002 and FY2003.) In addition, excluded from the ceiling are all H-1B non-immigrants who work at (but not necessarily for) universities and non-profit research facilities.[citation needed] This means that contractors working at, but not directly employed by the institution may be exempt from the cap. Free Trade Agreements allow a carve out from the numerical limit of 1,400 for Chilean nationals and 5,400 for Singapore nationals. Laws also exempt up to 20,000 foreign nationals holding a master’s or higher degree from U.S. universities from the cap on H-1B visas.

Visa renewals do not count towards the annual limits. Transfers among employers only count when changing jobs from an employer exempt from the limits (academia or research) to one that is not exempt.

For FY 2007, beginning on October 1, 2006, the entire quota of visas for the year was exhausted within a span of less than 2 months on May 26, 2006, well before the beginning of the financial year concerned. The additional 20,000 Advanced Degree H-1B visas were exhausted on July 26. For FY 2008, the entire quota was exhausted before the end of the first day on which applications were accepted, April 2. Under USCIS rules, the 123,480 petitions received on April 2 and April 3 that were subject to the cap were pooled, and then 65,000 of these were selected at random for further processing. The additional 20,000 Advanced Degree H-1B visas for FY 2008 was exhausted on April 30.

In its annual report on H-1B visas released in November 2006, USCIS stated that it approved 131,000 H-1B visas in FY 2004 and 117,000 in FY 2005. The inflation in numbers is because H-1B visas can be exempt from the caps if the employer is a University or Research Lab.

For FY 2009, USCIS announced on April 8, 2008 that the entire quota for visas for the year has been reached, for both 20,000 Advanced and the 65,000 quota. USCIS would complete initial data entry for all filing received during April 1 to April 7, 2008 before running the lottery.

[4] Dependents of H-1B visa holders

H-1B visa holders are allowed to bring their immediate family members (spouse and children under 21) to the United States under the H4 Visa category as dependents. An H4 Visa holder may remain in the U.S. as long as the H-1B visa holder remains in legal status. An H4 visa holder is not eligible to work in the U.S. and is not eligible for a Social Security number (SSN). An H4 Visa holder may attend school, obtain a driver’s license and open a bank account while in the US. Some recent state regulations prohibit H-4 visa holders from obtaining a driver’s license in cases where driver’s licenses are no longer being issued on Individual Taxpayer Identification Numbers alone and an SSN is required.

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