The U.S. H-1B visa is a non-immigrant visa, which allows a U.S. company to employ a foreign individual for up to six years. As applying for a non-immigration visa is generally quicker than applying for a U.S. "Green Card" (i.e., "permanent resident status"), staff required on long-term assignment in the U.S. are often initially brought in using a non-immigrant visa such as the H-1B visa.

Individuals can not apply for an H-1B visa to allow them to work in the U.S. The employer must petition for entry of the employee. H-1B visas are subject to annual numerical limits.

The H-1B visa is designed to be used for staff in "speciality occupations", defined as those occupations which require a high degree of specialized knowledge. Generally, at least the equivalent of a "job-relevant" 4-year U.S. Bachelor's degree is required (this requirement may be met by having a 3-year degree and 3 years' relevant post-graduate experience). However, professionals such as lawyers, doctors, accountants and others must be licensed to practice in the state of intended employment in order to be eligible.

[Note: It may be possible for a non-graduate to be employed on an H-1B visa where they can support 'relevant degree equivalency' by virtue of twelve or more years' experience in the occupation.]

Positions that are not "speciality occupations", or for which the candidate lacks the qualifications/experience for an H-1B visa, may be filled using an H-2B visa. The disadvantage of the H-2B visa is that it requires 'labor certification' - an expensive and time consuming process that involves extensive advertising of the position, and satisfying the authorities that there are no U.S. workers available to do the job. Also, H-2B visas are initially granted only for one year, extendable in one year increments to a maximum of 3 years.

Certain employers, called 'H-1B dependent employers', have specific provisions fo eligibility. H-1B dependent employers must also advertise positions in the U.S. before petitioning to employ H-1B workers for those positions. H-1B dependent employers are defined as those having more than 15% of their employees in H-1B status (for firms with over 50 employees; small firms are allowed a higher percentage of H-1B employees before becoming 'H-1B dependent'). In addition, all new H-1B petitions and 1st extensions of H-1B's now require an additonal filing fee of $1,000 (which will be used to fund a training program for resident U.S. workers).

The initial H-1B visa may be granted for up to three years. It may be extended, in the first instance for up to two further years, and eventually for one further year, to a maximum of six years.

H-1B visitors who seek to remain in the U.S. for more than six years may, while still in the U.S. on an H-1B visa, apply for permanent residence (i.e., "green card"). If permanent residence is not granted, when the six year period of stay runs out, they must reside outside the U.S. for at least one year before an application may be filed for them to again enter the U.S. on an H or an L visa.

Once a company has brought an employee to the U.S. on an H-1B visa, if the company dismisses that employee before the expiration of the visa the company is liable for any reasonable costs that the employee incurs in moving him/herself and his/her effects, back to his/her last foreign residence. This provision covers only dismissal, and does not apply if the employee chooses to resign.

Note: Physician H-1B Visas and National Interest Waivers ("NIW") are a special subset of the H-1B Visas. For more detailed infromation about Physicians, Nurses and Health Care Workers please check our other web site.

H-1B Dependent Employers
Before making an H-1B application, an H-1B dependent employer must make "good faith" attempts to recruit resident U.S. workers using "procedures that meet industry-wide standards" and "offering compensation at least as great as that offered to the H-1B alien". Given the wide variety of recruitment methods used in different industries, this provision is likely to cause some confusion both for USCIS and employers. However, this recruitment attestation is not required by H-1B dependent employers seeking to employ aliens with Master's (or higher) Degrees, or those earning in excess of U.S.$60,000. Non H-1B dependent employers are not required to make such an attestation in any event.

Can my company make H-1B visa applications?
Any U.S. employer can sponsor an H-1B petition, provided it has an IRS Tax Number, also known as an IRS Number or Tax ID Number. This number is needed for obtaining approval of the Labor Condition Application ("LCA"), which is an essential preliminary to the H-1B petition itself. However, employers should take note that sponsoring an H-1B petition involves a number of undertakings, enforceable by heavy civil and criminal penalties.

H-1B employers must:

• pay the H-1B worker at least the higher of the wage paid to similar workers in the same company or the "prevailing wage" (usually determined by the relevant State Employment Services Agency) for the occupation in the area the worker will be employed;
• Show hiring of the H-1B worker(s) will not adversely affect the conditions of the employer's U.S.-resident employees in similar jobs;
• Show there is no strike or lockout occurring at the time the Labor Condition Application is submitted, and that the approved LCA will not be used to support petitions for H1B aliens to be employed at the site of any subsequent strike or lockout;
• Show that a copy of the LCA form will be given to the H-1B worker and either given to the bargaining representative of employees in similar occupations or (if there is no bargaining representative) posted in 2 conspicuous locations for at least 10 days in the place the H-1B alien will be working;
• Maintain records of the LCA and the H-1B alien's employment for inspection by the U.S. Department of Labor.
  

Note that the prevailing wage is generally lower for non-profit and academic/research organizations.

H-1B Beneficiary Eligibility
In order to qualify for an H-1B visa, the alien must demonstrate that s/he is able to work in the speciality occupation for which s/he is being hired by the sponsoring employer. This can be demonstrated by:

• Possession of a relevant U.S. college degree;
• Possession of a non-U.S. college degree (and, generally, 3 years' relevant high-level work experience) independently evaluated as being equivalent to a relevant U.S. college degree;
• Possession of at least 12 years' high-level work experience, independently evaluated as being equivalent to a U.S. college degree; or
• Possession of any relevant State or Federal license that may be required in order to practice in a particular profession.

Note: If there is a requirement for a State or Federal license in order to practice any 'speciality occupation', then the alien must generally possess such a license in order to qualify for an H-1B visa. For example, doctors, lawyers, accountants and similar professionals must generally have passed the relevant state licensing examination and be in all other respects qualified to practice in the State of intended employment.

Frequently Asked Questions about H-1B Visas
Q. Can the H-1B employee work at different sites?
A. Yes, but a separate Labor Condition Application must be made for each site at which the employee will be working (though there is a limited exception for short-term assignments at different sites within the same Metropolitan Statistical Area).

Q. Can employment/contracting agencies sponsor H-1B visas?
A. Yes, but the sponsor has to pay the prevailing wage whether or not they can find employment for the alien.

Q. How many H-1B visas are available each year?
A. 65,000 for each fiscal year. The U.S. government fiscal year begins October 1 and ends September 30. H-1B applications cannot be filed until April 1 preceding the fiscal year and H-1B employment cannot begin until after October 1. The H-1B quote fills earlier each year. In 2006, for fiscal year 2007, the H-1B quota filled before the end of May.

Q. What happens when the annual quota is reached?
A. The USCIS announces a cutoff date once the annual quota is reached. Petitions filed before the cutoff date, but after the quota has been used up, will be held for processing the following October. Petitions submitted after the cutoff date will be returned to the petitioner without consideration.

Q. What are the government fees involved in obtaining an H-1B visa, and who pays them?
A. The USCIS filing fee is currently US $185, Which must be paid by the sponsoring employer. In addition, consular visa processing usually involves a charge of approximately $100 in local currency. Prevailing Wage Determinations and Labor Condition Applications are free of government charges.

Q. How long does the process take?
A. On average 3-6 months in total, depending on the USCIS Regional Service Center processing the application - unless using Premium Processing.

Q. Is it possible to speed up the process.
A. Yes. The USCIS has instituted a program called Premium Processing. The Premium Processing fee is an additional $1,000. In Premuim Processing USCIS guarantees it will adjudicate (not "approve", but "adjudicate") the petition in15 days or notify the petitioner if more evidence is needed.

Q. Can the alien come to the U.S. on a visitor visa or visa-waiver while the H-1B petition is being processed?
A. This is possible but not advisable, and in no event should the alien risk putting in jeopardy the issuance of an H-1B visa by engaging in anything that might be construed as work, as this may lead to the alien being accused of visa-fraud either on entry to the U.S. with a visitor visa/visa-waiver or when applying for an H-1B visa at the U.S. Consulate in their own country.

Q. If I sponsor an alien worker for an H-1B, do I have to employ him/her for the full period of the visa's validity?
A. No, but if you dismiss the worker before the H-1B visa expires you are responsible for his/her reasonable costs of return transportation to their home country. You will probably not be responsible for such costs for his or her dependants, however.

Q. Can the H-1B alien's spouse/children work or study in the US.
A. Dependents of the H-1B alien are granted H-4 visas, which are not employment-authorized. Thus they cannot work unless their prospective employer unless they can obtain a work visa in their own right. H-4 dependents may, however, undertake study in the U.S.

Q. How Do I Get Permission to Change to a New Nonimmigrant Status?
A. (1) A nonimmigrant temporarily enters the U. S. for a specific purpose such as business, study, temporary employment or pleasure. When you are admitted into the U.S., a U.S. official will assign you a nonimmigrant category according to the purpose of your visit. If you want to change the purpose of your visit while you are in the U.S. then you or, in some cases your employer, must ask the USCIS to change your nonimmigrant status. For instance, if you arrived here as a tourist, but want to become a student, you must submit an application to change your status with the USCIS. If you do not apply to change your nonimmigrant status, you will be breaking U.S. immigration laws. Proof that you are willing to obey U.S. laws may be important if you want to travel to the U.S. as an immigrant or nonimmigrant in the future. You may also become subject to removal (deportation) if you break U.S. immigration laws.

Q. Who May Apply to Change to a New Nonimmigrant Status?
A. In general, you may apply to change your nonimmigrant status if you were lawfully admitted into the U.S. with a nonimmigrant visa, your nonimmigrant status remains valid, and you have not committed any crimes that would make you ineligible.

You may not apply to change your nonimmigrant status if you were admitted to the U.S. in the following visa categories:

(VWPP) - Visa Waiver Pilot Program (or the Guam Visa Waiver Program)
D - As a crewman
C - As an alien in transit or in transit without a visa
K - As a fiancé(e) or spouse of a U.S. citizen or dependent of a fiancé(e) or spouse
S - As an informant (and accompanying family) on terrorism or organized crime

If you are an international exchange visitor (J visa category) you may not change your nonimmigrant status if you were admitted to the U.S. to receive graduate medical training, unless you receive a special waiver. In addition, some exchange visitors must meet a foreign residence requirement before they are allowed to change status. This means that some international exchange visitors must leave the U.S. and go back to their home country for a minimum of two years before applying to come to the U.S. as a temporary worker or an immigrant. If you are an exchange visitor and are required to meet the foreign residence requirement, you must receive a waiver if you wish to change your nonimmigrant status without returning home. If you do not receive a waiver, then you may only apply to change to the A (Diplomatic and other government officials, and their families and employees) or G (Representatives to international organizations and their families and employees) nonimmigrant categories.

If you are a vocational student (M visa category), you may not apply to become an academic student (F visa category). You also may not apply to change from the vocational student visa category to a temporary worker visa category (H) if it was the training you received as a vocational student in the U.S. that made you qualified for the temporary worker position.

You do not need to apply to change your nonimmigrant status if you were admitted into the U.S. for business reasons (B-1 visa category), and you wish to remain in the U.S. for pleasure before your authorized stay expires.

If you are in the U.S. as the spouse or child of someone in the following nonimmigrant visa categories, you do not need to apply to change your status if you wish to attend school in the U.S. (as long as your parent or spouse maintains their original nonimmigrant status).

A - Diplomatic and other government officials, and their families and employees.
E - International Trade and Investors
G - Representatives to international organizations and their families and employees.
H - Temporary Workers
I - Representatives of foreign media and their families
J - Exchange Visitors and their families
L - Intracompany Transferees

If you are in the U.S. as the spouse or child of someone in the F (Academic Student) or M (Vocational Student) visa category, you do not need to apply to change your status if you wish to attend elementary, middle, or high school in the United States. If you wish to attend post-secondary school full-time, you must apply for change of status.