Non-Immigrant Visas
Specialty Occupation Work Permit (H-1B)
H-1B visas are issued to aliens who have attained a bachelor’s degree in a specialty field and have obtained a job offer from a U.S. employer in that specialty occupation. H-1B visas are valid for an initial period of three (3) years and may be renewed for another three (3) years.
You may be eligible for an H-1B visa if:
- You have a bachelor’s degree, or its foreign equivalent, (three years of work experience may sometimes be substituted for one year of college) in a specialty occupation;
- A prospective U.S. employer will sponsor you for a job within that specialty occupation; and
- The job requires a bachelor’s degree in that specialty occupation.
The U.S. employer, acting as the sponsor, must attest to four conditions in submitting the Labor Condition Application (LCA) to the Department of Labor. H-1B dependant employers must make additional attestations. The four primary attestations are to:
- Pay the H-1B visaholders at least the prevailing wage or the employer’s actual wage, whichever is higher, and pay for non-productive time; and offer the H-1B aliens the same benefits offered to U.S. workers;
- Provide working conditions to the H-1B visaholders which will not adversely affect the working conditions of workers similarly employed;
- Certify that there is no strike or lockout in the occupational classification at the place of employment; and
- Give notice to the union or to workers at the place of employment and give a copy of the LCA to the H-1B worker.
H-1B workers generally may travel abroad and re-enter the U.S. without first obtaining advance parole as long as the alien continues to work for the sponsoring employer and maintains valid H-1B status. Spouses and unmarried children under the age of twenty-one (21) of the H-1B visaholder can obtain H-4 visas and travel outside the U.S. H-4 visaholders are not permitted to engage in employment. As long as the H-1B alien maintains valid H-1B status, the spouse and unmarried children maintain valid H-4 status.
Beginning Fiscal Year 2004, the number of aliens permitted to annually receive H-1B visas was dramatically reduced to 65,000. Adjudication of H-1B applications can take a few months and an alien may not begin to work for the sponsoring employer until the initial H-1B petition is approved. For an additional $1,000.00, an employer may request premium processing, which guarantees an answer by the USCIS within fifteen (15) days of receipt of such a request.
Prior to recent changes in legislation, an alien could not change employers without first obtaining a new approved H-1B visa, which could take several months. With the new laws, an H-1B worker may be eligible to work for the new petitioning employer as soon as the H-1B petition is filed with the USCIS. However, this applies only when the new job is similar in nature to the previous job.
Additionally, new laws permit an alien to extend his H-1B visa for a seventh year if an LCA for permanent residency has been pending for more than 365 days. Unlike most non-immigrants visas, the H-1B visa recognizes the doctrine of dual intent. That is, an H-1B worker may maintain valid H-1B status while simultaneously applying for permanent residency. In the majority of non-immigrant visa categories, the visa will be revoked upon filing of an application for permanent residency. This is not the case for an H-1B visa.
The list of non-immigrant visas available to aliens can be found in INA §101(a)(15) and include:
- Ambassador, public minister, or career diplomatic or consular officer;
- Visitor for business or pleasure;
- Individual in immediate and continuous transit;
- Alien crewman;
- Treaty investor or trader;
- Academic student;
- Designated principal representative of a foreign government;
- Temporary worker;
- Representative of the foreign press, radio, film;
- Participant in an approved exchange program;
- Fiance of a U.S. citizen;
- Intracompany transferee;
- Vocational student;
- Parent or child of an alien with special immigrant status;
- Alien with extraordinary ability in the sciences, arts, education, business, or athletics;
- Artist or entertainer;
- Participant in an approved international cultural exchange program;
- Religious worker;
- Criminal informant;
- Victim or informant of trafficking;
- Victim and informant of certain criminal activity; and
- Certain beneficiary of permanent residency application filed by lawful permanent resident.
