One of the more frequently used nonimmigrant visa classifications for temporary employment of foreign workers is the H-1B visa for “professional” or “specialty occupations”. The U.S. Citizenship and Immigration Service(USCIS) defines “specialty occupations” as positions that typically require the theoretical and practical application of a body of highly specialized knowledge. This is most commonly evidenced by the attainment of a bachelor’s degree (or foreign degree equivalent) in a relevant field of study. For certain individuals with specialized skills and considerable work experience, academic equivalency evaluations may be obtained to establish that the individual possesses the functional equivalent of a bachelor’s degree.
Prior to submitting an H-1B petition to the USCIS, the company must file a Labor Condition Application (LCA) with the Department of Labor. The LCA defines the employer’s obligations to ensure that employing a foreign worker under the H-1B program will not adversely impact the wage or working conditions of similarly situated United States workers.
Work authorization under the H-1B employment is specific to the employer/petitioner, worksite location and the position described on the petition. A material change in the terms and conditions of employment may necessitate the filing of an amended petition.
Individuals who are currently in, or have been previously admitted into, the United States in H-1B status, and have not engaged in unauthorized employment in the United States, may be eligible for H-1B “portability”. H-1B portability permits qualified H-1B holders to commence employment with a new company upon the filing of a new H-1B petition with USCIS. Employers should be certain that portability applies before bringing prospective H-1B employees onto their payroll. Generally, individuals who are not invalid H-1B status must wait for USCIS approval prior to commencing employment with a new company.
New H-1B visas are subject to annual limits each fiscal year (the U.S. government’s fiscal year begins on October 1 and ends on September 30). Currently, the annual limit is 65,000 per year with an additional 20,000 available to H-1B applicants who possess an advanced degree or higher from a U.S. academic institution. Once the H-1B cap is reached, employers must wait until the beginning of the next fiscal year to petition for new or first time H-1B candidates. Due to the cap, employers must often plan far in advance and should file as early as possible to ensure they secure H-1B status for the next fiscal year. Only first time or initial H-1Bs are subject to the cap. Certain educational institutions and nonprofit or government research organizations are H-1B cap exempt. In addition, a number of H-1Bs are set aside for H-1B nonimmigrants who are citizens/nationals of Chile or Singapore pursuant to special Free Trade Agreements.
Under current law, a foreign national can be in H-1B status for a maximum period of six years at a time. After that time, the H-1B non-immigrant must remain outside the United States for one year before another H-1B petition can be approved. Certain H-1B nonimmigrants working on Defense Department projects may remain in H-1B status for up to 10 years. Time spent outside the United States does not count towards the H-1B six-year limit and may be recaptured. Employees should retain any documentation that evidences time spent abroad.
Qualifying H-1B non-immigrants may obtain an extension of H-1B status in one-year increments beyond the 6-year maximum period, when:
- a labor certification is unexpired at the time of filing the H-1B beneficiary’s H-1B petition and the labor certification was filed at least 365 days prior to the date the beneficiary will have exhausted 6 years of H-1B status, or
- 365 days or more have passed since the filing of an employment-based immigrant petition that has not been denied or revoked.
Furthermore, if the H-1B nonimmigrant is the beneficiary of an approved immigrant petition, but is unable to move forward with his/her permanent resident processing due to a backlog in the immigrant visa quota, the individual may obtain a three-year extension beyond the six-year limit.
Spouses and children of H-1B non-immigrants are eligible for H-4 visas and may be admitted for the same duration of stay as the H-1B principal.