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Learn More About H-1B Visas

Visa Type

This visa is for professionals employed in a “specialty occupation,” one that normally requires a specific type of bachelor’s degree (or higher).

Who Qualifies

Professionals who hold a bachelor’s degree or higher—or its equivalent—in the specific degree field required for the position, or in a very closely-related degree field qualify.  An appropriate combination of education and work experience, or 12 years of professional-level work experience in the field, may qualify as being equivalent to a bachelor’s degree.

Quota

There are a limited number of H-1B visas available every fiscal year. This quota totals 85,000 per year, which includes 20,000 reserved exclusively for those with a U.S. master’s degree or higher.  Certain petitioners are exempt from the quota.  Beneficiaries with a Conrad J-1 waiver and H-1B change of employer, amendment, and extension petitions are also exempt.

Time Limitation

An H-1B petition can be approved for up to a 3-year period and can be extended up to an additional 3 years, for a total stay of 6 years.  Additional extensions beyond the sixth year depend on reaching key milestones in the permanent residency process.

Dependent Eligibility

Spouses and unmarried children under the age of 21 are eligible for H-4 dependent visa status.

Dependent Work Authorization

H-4 spouses may apply for work authorization only if their H-1B spouses have an approved I-140 Immigrant Visa Petition or have reached certain other milestones in the permanent residency process.

Dual Intent

H-1B nonimmigrants may have “dual intent,” meaning they may seek to pursue permanent residency in the United States while otherwise maintaining their H-1B status.

Petition Requirement

An H-1B petition must be filed with USCIS.

 

H-1B in Greater Detail

The H-1B visa is used for the temporary employment of a foreign worker in a specialty occupation, which is a position that normally requires a bachelor’s degree or its equivalent in a specific degree field or in one of a closely-related group of degree fields.  The H-1B candidate must hold at least the equivalent of a bachelor’s degree in an appropriately-related discipline.  In the absence of a U.S. bachelor’s degree, the candidate’s non-U.S. educational credentials and/or work experience may be evaluated to confirm equivalence to at least a U.S. bachelor’s degree.

An H-1B visa may be requested for an initial period of up to three years.  The total period of time a foreign worker can hold H-1B status is six years.  Only time physically present in the U.S. in H-1B status counts against the six-year limitation, so absences from the U.S. may be “recaptured” to extend H-1B status beyond the sixth year.  Additional extensions may be obtained beyond the sixth year only if the individual has reached key milestones in the permanent residency process before reaching his or her maximum eligibility. The H-1B visa category may be used for either full-time or part-time employment.  If a foreign worker would like to work for more than one employer, the worker must have an approved H-1B petition for each employer.

The number of H-1B visas available each fiscal year (October 1 to September 30) is only 65,000, plus up to 20,000 additional numbers for individuals with a master’s degree or higher from a U.S. university.  While most employers are subject to the cap and cannot hire an H-1B worker once the cap is reached until the start of the new year (October 1), in certain situations the employer is considered exempt from the cap.  Institutions of higher education, non-profit entities related to or affiliated with an institution of higher education, and non-profit and government research organizations are exempt.  Also, if the foreign worker currently holds or has held H-1B status in the past, he may also be exempt.

Spouses and unmarried children under 21 are eligible for H-4 dependent visa status. They are not allowed to work unless they obtain an independent visa or status that authorizes employment.  H-4 spouses may apply for work authorization only if their H-1B spouses have an approved I-140 Immigrant Visa Petition or have reached certain other milestones in the permanent residency process.  Those in H-4 status may attend school.

Labor Condition Application

Prior to filing the H-1B visa petition with USCIS, it is necessary for the prospective employer to file a labor condition application (LCA) with the Department of Labor (DOL), confirming that the employment of the H-1B worker will not adversely impact the wages and working conditions of U.S. workers at this place of employment.  The employer must agree to pay the higher of the prevailing wage in the geographic area or the actual wage paid to similarly qualified and similarly employed workers at the place of employment.  We will assist you in determining the prevailing wage and can provide guidance to help you establish the actual wage for similar positions within your organization. 

 

If you would like further information, please contact Foster LLP at 713-229-8733 (Houston, TX), or at 512-478-9475 (Austin, TX) or email a consultation request through our website at www.fosterglobal.com.

This article is made available for informational purposes only and does not constitute legal advice.