The H1B Visa

The H1B Visa is a United States nonimmigrant visa. It allows a U.S. company to employ a foreign individual for up to six years and it may lead to a Green Card.

The purpose of the H-1B visa is to give U.S. employers the opportunity to hire foreign professionals if a U.S. citizen or resident is not available. In order for the H-1B visa to be issued, both the employer and employee must satisfy specific requirements.

Individuals are not able to apply for an H1B visa to allow them to work in the US. The employer must petition for entry of the employee. H1B visas are subject to annual numerical limits. US employers can begin applying for the H-1B visa six months before the actual start date of the visa. Employers can apply as soon as April for the FY cap, but the beneficiary cannot start work until October. In general, the cap is reached within the first week of applications, therefore emplyers must apply for their employees as soon as possible in order to be in with a chance of being included within the cap.

Employer Requirements

The job offer must be in a specialty occupation such as architecture, engineering, mathematics, etc.

There are criteria for wages offered and the actual job performed

No U.S. citizen or resident must be available for the job

The petition must be submitted by the company (not the employee)

To successfully complete this process, the employer must first attest that the H-1B visa worker is being paid, at minimum, what is called the “prevailing wage” for the job. The “prevailing wage” is defined by DOL rules as the average rate of wages paid to workers similarly employed in the area of intended employment. The prevailing wage is determined through the National Prevailing Wage Center (NPWC). The following factors determine one’s prevailing wage:

Job title;

Educational and work experience requirements;

Job description;

Job location; and

Type of employer, (i.e. academic, government or private.)

Employee Requirements

The employer must show that the alien worker meets the specific educational requirements to be engaged in the specialty occupation. As a general rule, the alien worker must possess a Bachelor's or higher degree from an accredited college or university and the degree must be a requirement to qualify for the specialty occupation.

Duration of stay

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

H-1B holders who want to continue to work in the US after six years, but who have not obtained permanent residency status, must remain outside of the US for one year before reapplying for another H-1B visa. Despite a limit on length of stay, no requirement exists that the individual remain for any period in the job the visa was originally issued for. This is known as H-1B portability or transfer, provided the new employer sponsors another H-1B visa, which may or may not be subjected to the quota. Under current law, H-1B visa has no stipulated grace period in the event the employer-employee relationship ceases to exist

Congressional yearly numerical cap

The current law limits to 65,000 the number of foreign nationals who may be issued a visa or otherwise provided H-1B status each fiscal year. Laws 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. In addition, excluded from the ceiling are all H-1B non-immigrants who work at (but not necessarily for) universities, non-profit research facilities associated with universities or government research facilities. This means that contractors working at, but not directly employed by the institutions may be exempt from the cap. However, if these reserved visas are not used, then they are made available in the next fiscal year to applicants from other countries. Due to these unlimited exemptions and roll-overs, the number of H-1B visas issued each year is significantly more than the 65,000 cap, with 117,828 having been issued in FY2010, 129,552 in FY2011, and 135,991 in FY2012.

Family & Dependents

H-1B visa holders can bring their spouse and children under 21 years of age to the US under the H4 Visa category as dependents. An H4 Visa holder is allowed to remain in the US as long as the H-1B visa holder remains in legal status. While, an H4 visa holder is not eligible to work in the US, they may attend school, obtain a driver's license and open a bank account while in the US.

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