The H-1B visa allows an alien to enter the U.S. to perform temporary work in a specialty occupation or as a fashion model of distinguished merit and ability. A specialty occupation is defined in INA 214(i)(1) as requiring (1) theoretical and practical application of a body of highly specialized knowledge, and (2) attainment of a bachelor’s or higher degree (or its equivalent) in the specific specialty as a minimum for entry into the occupation in the United States.
Only 65,000 H-1B visas are available per fiscal year (with an additional 20,000 for those with a master’s degree or higher from a U.S. institution of higher education). Applications are submitted on April 1st for work beginning on Oct. 1st (i.e., no earlier than 6 months prior to beginning of fiscal year). The popularity of the H-1B visa is attested to by the fact that in
prior years the H-1B quota was reached within the first week, or less, of April.
With many non-immigrant visas, you must show that you have a foreign residence that you have no intention of abandoning and that you are only coming to the U.S on a temporary basis (i.e., you have no intent to immigrate). The H-1B visa, however, is a dual-intent visa. You are allowed to come to the U.S. to work temporarily but you can also seek permanent residence without negatively affecting your H-1B visa application or your H-1B status, assuming you otherwise qualify for permanent residence (i.e., such as through an employment-based or family-based petition).
In order for an alien to qualify for this visa category, they must meet the following requirements under INA 214(i)(2):
1. full state licensure to practice in the occupation, if such licensure is required to practice in the occupation,
2. completion of a bachelor’s degree or higher for the occupation, or
3. experience in the specialty equivalent to the degree requirements, and recognition of expertise in the specialty through progressively responsible positions relating to the specialty.
A few examples of individuals who may benefit from the H-1B visa include accountants, acupuncturists, architects, chiropractors, dieticians, fashion designers, engineers, hotel managers, human resource managers, investment analysts, journalists, lawyers, librarians, nurses, pharmacists, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries.
The Process to Obtain an H-1B Visa
The employer must first file a labor condition application with the Department of Labor, attesting, under INA 212(n)(1):
1. they are offering H-1B wages that are at least the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or the prevailing wage level for the occupational classification in the area of employment, whichever is greater;
2. they will provide working conditions for the nonimmigrant that will not adversely affect the working conditions of workers similarly employed;
3. there is no strike or lockout in the course of a labor dispute in the occupational classification at the place of employment;
4. the employer has provided notice of the filing to the bargaining representative (if any) of the employer’s employees in the occupational classification and area for which aliens are sought, or if there is no such bargaining representative, has provided notice of filing by methods including physical posting in conspicuous locations at the place of employment or electronic notification to employees in the occupational classification for which H-1B non-immigrants are sought;
5. The application shall contain a specification of the number of workers sought, the occupational classification in which the workers will be employed, and wage rate and conditions under which they will be employed.
Additional attestations are required in certain circumstances, including if the employer is found to be relying too heavily on H1-B workers.
After the labor condition application is approved, the employer can then file the visa petition for the alien with USCIS, along with a copy of the approved labor condition application. If the alien is in certain categories of lawful status in the United States (e.g., F-1 visa), the employer can request on the petition to change the alien’s status to H-1B. If the alien is residing
outside of the United States, after the petition is approved the alien will take the approval notice to the American Consulate in their country to obtain the H-1B visa. Immediate family
members (i.e., spouse and children) will be granted H-4 visas and be allowed to accompany the alien worker.
Duration of H-1B Visa
The H1-B visa is good for a maximum of three years, but can be extended for another three years for a total of six years. If the alien worker has reached their six year limit, but an employment-based green card petition (EB-1, EB-2 or EB-3) has been filed for them and they can not file their Application to Register Permanent Residence or Adjust Status because their priority date is not yet current due to per country visa limitations, then they can have their H-1B visa extended in three year increments under § 104(c) of the American Competitiveness in the 21st Century Act (AC21) until their adjustment of status petition has been filed and it has either been approved or denied. In order to obtain the extension, the employment-based visa petition filed on the alien’s behalf must have been approved. Alternatively, the alien can obtain extensions in one year increments if the labor certification or the employment based immigrant petition was filed with USCIS at least 365 days prior to the date the alien’s H-1B visa will expire. AC21 § 106(a).
Do you have questions about this visa category, or how to obtain a temporary work visa? Please contact a Woodland Hills H-1B visa immigration attorney for a consultation so we can help you obtain an H-1B visa. In addition to Woodland Hills, we provide immigration attorney services in a variety of other areas, including Agoura Hills, Alhambra, Burbank, Calabasas, Canoga Park, Eagle Rock, Encino, Glendale, La Cañada Flintridge, Los Angeles, Mission Hills, Monterey Park, North Hollywood, Northridge, Pasadena, Reseda , San Fernando , Santa Clarita, Sherman Oaks, Tarzana, Thousand Oaks, Valley Village, Van Nuys, Warner Center, Winnetka, and West Hills. Even if your city is not listed, please don’t hesitate to contact us to see if we can help. Since immigration law is federal, we can help you wherever you live in the United States.