H-1B visa allows an employer to employ a foreign national for up to six years. In order to obtain an H-1B, the employer must demonstrate that the position, for which the H-1B is being filed, requires a professional in a “specialty occupation” and, further, the foreign national (beneficiary) meets the required qualifications.
A “specialty occupation” is an occupation that requires theoretical and practical application of a body of highly specialized knowledge and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.
During each fiscal year, USCIS (US Citizenship & Immigration Services) allows up to 65,000 foreign nationals to receive initial H-1B status, running from October 1 to September 30. These numbers are reduced by the U.S.-Chile and U.S.-Singapore Free Trade Agreements (FTAs), which set aside 6,800 numbers for workers from these two countries each fiscal year. Unused FTA visas from a prior fiscal year may be recaptured and made available in the first six weeks of the following fiscal year. There is an additional quota of 20,000 H-1B that are reserved for foreign nationals holding a Master’s degree or higher awarded by a college or university in the United States.
Procedure & Requirements
- The foreign national must have a U.S. equivalent bachelor’s degree or equivalent work experience;
- Attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) should be the minimum entry into the occupation;
- The petitioner must obtain a labor conditional application (LCA), after first obtaining the prevailing wage determination from an acceptable wage survey source, from the U.S. department of Labor;
- Upon approval of the LCA, the employer should file a Form I-129 petition with the US Citizenship & Immigration Services (USCIS);
- The petitioner can expedite the H-1B process so that the initial determination is made within 10-15 calendar days by requesting premium processing for an additional fee to the US Citizenship & Immigration Services.
- A foreign national who is currently in H-1B status is ‘generally’ exempt from the above listed numerical limitation;
- The spouse and unmarried child/ren below the age of 21 are allowed to accompany / join the foreign national in H-4 status, however they are not allowed to work in the United States unless they qualify for a work visa;
- A foreign national may hold H-1B status for a maximum of six years, generally issued in increments of up to three years;
- An extension beyond the six-years is permitted under certain circumstances.