The H-1B visa is a nonimmigrant work visa used by aliens who will be employed temporarily in a specialty occupation. The H-1 visa may be used to bring a worker to the United States if the employee will work in a professional position. Specialty occupation is defined as an occupation that requires highly specialized knowledge and at least a bachelor's degree in a related field. In certain cases, documented work experience may be accepted in lieu of a bachelor's degree.
Specialty occupation includes accounting, architecture, business specialties, engineering, education, information technology, law, mathematics, medicine and health, physical sciences, social sciences, theology, and arts. Other professions may also qualify as specialty occupations.
The H1B work visa requires a sponsoring US employer. The sponsor must file a labor condition application with the Department of Labor attesting to several items, including payment of prevailing wages for the position, and the working conditions offered. The H1B employer must then file an I-129 petition with the US Citizenship and Immigration Services (USCIS, formerly Immigration and Nationality Act (INA)). Based on the USCIS petition approval, the alien may apply for an H1B visa stamp at an American Embassy or Consulate abroad or a change of nonimmigrant status with the USCIS. An H1B visa stamp allows an alien holding that status to travel abroad and reenter the US during the validity period of the visa and approved petition.
An alien may be admitted into the US in H1B work visa status initially for up to three years with possible extension for three more years. After six years in H1B status, an alien must remain outside the United States for one year before another H1B petition can be approved. H1B aliens may only work for the petitioning US employer and only in the H1B activities described in the petition.
An H1B alien can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident (LPR) status without affecting the H1B status. This is known as "dual intent" and is recognized under the immigration laws. During the time that the application for LPR status is pending, an alien may travel on his or her H1B work visa rather than obtaining advance parole or request other advance permission from the USCIS to return to the US.
Under the American Competitiveness in the 21st Century Act (AC21), the quota for the H1B work visa was increased to 195,000 per year through fiscal year ending September 30, 2003. Starting fiscal year 2004 the H1B cap returned to 65,000 per year.
H1B Transfer - Under the portability provisions of AC21, an alien previously issued an H1B visa and/or granted H1B status may transfer to a new H1B job provided that the new employer has filed a non-frivolous petition (not without basis in law or fact) on behalf of the alien, and that the alien has not accrued unlawful presence in the US. In cases where the H1B petitions are denied following commencement of employment under the portability provisions, employment authorization of the H1B alien CEASES upon denial.
Due to the numerous H1B layoffs in recent times, employers must understand their obligations upon termination of H1B workers. Employers who dismiss their H1B employees before the end of the approved period of employment are required to pay the transportation cost of returning the aliens to their last place of foreign residence. If the H1B worker voluntarily terminates his or her employment prior to the expiration of the H1B status, then the employer is not liable for the alien's return transportation. The USCIS regulations also require the employer who no longer employs the H1B nonimmigrant to notify the USCIS of the termination in writing.
To consult an immigration lawyer regarding the H1B Work Visa, please call us at
(212) 947-7534 or e-mail us at: Michael@mmlawnyc.com . An attorney in our office would be happy to assist you.