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An H-1B visa may be issued to an alien who is coming temporarily to the United States to perform services in a specialty occupation as defined in the US immigration and Nationality Act. The applicant for an H-1B visa must first receive an offer of employment from a US company, which company must file a visa petition on his or her behalf.

The number of H-1B visas, or change of status, that can be approved each year is limited to 195,000. However, since some H-1B professions are not counted toward the cap, the actual number issued each year may be significantly higher.

The petition is filed with the US immigration and Naturalization Service Center having jurisdiction over the place where the alien will be employed, on US immigration form I-129, together with the H supplement, and US immigration form I-129W. When the petition is approved, it is forwarded to an American consulate abroad, where the alien will apply for his or her H-1B visa. If the alien is in lawful status in the United States, a change of status can be granted without the need to travel outside of the country to obtain the visa. An alien with an H-1B visa or status may be recognized as having a dual intent. This means that the alien may qualify for an H-1B visa even if he or she has evidenced an intention to reside in the United States permanently at some future time. This dual intent doctrine is applicable only to aliens who have an H-1B, E, O, P, or L visa.

As stated above, an H-1B visa can be issued only to aliens in a specialty occupation. It has been determined by the US immigration service that members of the professions, whose job duties require a professional person, qualify as aliens in a specialty occupation, such as architects, engineers, lawyers, doctors, and teachers. There are many other occupations that can qualify for professional status. These generally require at least a minimum education, equivalent to a BA or BS degree from a university in the United States. (A list of occupations, which the US immigration service has determined to be professional, can be seen here.)

The professional qualifications of an alien are generally established by showing that he or she has at least a BA or BS degree from an American university in the field in which he or she will be employed. If the alien has a degree from a foreign university, it will be necessary to have that degree evaluated by a professional evaluating service, to determine whether it is equivalent to at least a BA or BS degree from a university in this country.

If an alien is coming to the United States to engage in a profession that requires licensing, he or she must meet all the necessary licensing requirements in order to be eligible for an H-1B visa, since the alien must be immediately available to engage in the employment outlined in the petition.

Prior to filing an H-1B petition, the employer must file with the US Department of Labor a Labor Condition Application (known as an LCA). The employer must attest in the LCA that it is offering to the H-1B employee the higher of either:

• (a) the actual wage the employer pays to other individuals similarly employed with similar experience and qualifications, or
• (b) the prevailing wage for that position in the geographical area of employment based on the best information available.

The employer must also affirm that the working conditions for the H-1B worker will not adversely affect the working conditions of other workers similarly employed; that there is no strike, lockout, or work stoppage in the course of a labor dispute; that the employer has given its employees notice of the filing of the LCA through posting or notice to a bargaining representative, if applicable; that the employer did not displace and will not displace a US worker employed by the employer within the period beginning 90 days before and ending 90 days after the filing of the H-1B petition; that the employer has taken good faith steps to recruit for the position in the United States using industry-wide standard practices; has offered the job to any US worker who applies and is equally or better qualified than the H-1B worker; and that the employer has provided, or will provide, a copy of the LCA to the H-1B worker. Furthermore, the employer must affirm that if the H-1B alien is dismissed before the end of the period of authorized stay, the employer will be liable for the reasonable costs of return transportation of the alien abroad to his or her last place of foreign residence. Any type of dismissal is covered, including one for cause. The only exception is where the alien voluntarily terminates employment.

In addition, the US employer must pay a $1000.00 fee that will be used to fund training programs to help eliminate US employers' reliance on foreign workers. This fee, and form I-129W, must accompany all petitions for new employment, and for the first extension petition filed by an employer for a particular H-1B employee. Under the statute, the employer must pay this fee. The employer cannot require or accept reimbursement for the fee from the employee, or risk a fine of $1000.00. Institutions of higher education and their related or affiliated non-profit entities, other nonprofit research institutions and government research institutions are not required to pay the fee. Also not required to pay the fee are primary and secondary schools, as well as non-profit organizations engaged in curriculum-related clinical training of students registered at an institution of higher education.

When the alien is admitted to the United States in H-1B status, or upon a change of status within the United States, the alien may begin employment with the petitioning company in the job specified on the petition. The alien may not change employers, nor significantly change his or her job duties within the company, without first filing a new petition. He/she does not have to wait for the petition to be approved. The petition must be non-frivolous, and the beneficiary must be a non-immigrant admitted to the US (no particular non-immigrant category is specified, but the individual must have been previously issued an H-1B visa or otherwise provided H-1B status), must not have been employed without authorization before the petition was filed, and must be in an unexpired period of stay when the petition is filed.

Upon obtaining an H-1B visa, the spouse and children of the principal alien are entitled to H-4 status. At the present time, the H-1B and H-4 visas are issued for an initial period of three (3) years, and the US immigration service may grant an extension of three (3) years.

A new provision added October 17, 2000 allows a further extension in two circumstances:

• (a) a beneficiary of an employment-based first, second, or third preference petition who is eligible for permanent residence, but for the application of the per-country limits, may obtain extension of the H-1B status until the adjustment of status is decided; and
• (b) an H-1B status can be renewed in one-year increments for beneficiaries of any employment-based petition until adjustment processing is completed as long as 365 days or more have elapsed since the labor certification application or immigrant petition was filed.

Also, the State Department Visa Office may reissue an H-1B visa without the need of the alien to travel outside of the United States in order to have the visa placed in his or her passport. H-4 aliens may not be employed in the United States, and their status is valid only as long as the principal alien is validly in status. If an H-1B petition is denied, the prospective employer may appeal the decision to the Administrative Appeals Office. However, the denial of an extension of stay is not appealable and may only be contested by an appropriately filed motion to reopen or reconsider.

Apply today with our Temporary Professionals (H1-B) Kit