The H-1B Visa - Visas for Professional Workers

January, 2002

Introduction
Eligibility for the H1-B Visa
Duration and Extension
Visa Eligibility for A Spouse and Minor Children
Converting an H-1B Visa

Notice: Immigration laws and regulations can change very quickly, and you should not rely upon this article to reflect the latest changes in the law. Obtaining a non-immigrant visa can be complicated, and visa applications may be denied. While many individuals successfully navigate the application process on their own, it is often beneficial to utilize a qualified immigration attorney.

Introduction

The H-1B visa, commonly referred to as the "professional worker's visa," is reserved for people within "specialty occupations," who are considered for admission to the United States on the basis of their professional education, their skills, or both. The H-1B visa permits U.S. companies to employ highly skilled foreigners in order to enhance their workforces. This is the most common U.S. visa, and is ordinarily the easiest non-immigrant visa to acquire.

Eligibility for the H1-B Visa

The H-1B visa is available to:

Persons who hold a four year college degree or higher educational degree, or the equivalent in work experience (or, in extraordinary circumstances, certain persons in specific occupations);
Who have a job offer from a U.S. company which has agreed to sponsor the visa holder; and
Will be employed in a position with the sponsoring company which requires the visa holder to possess a four-year degree or its equivalent in experience, with the wage paid being the prevailing wage for such a job within that jurisdiction.

There are annual limits on the number of H-1B visas which will be issued.

To apply for an H-1B visa, an employer must file a labor attestation with the U.S. Labor Department Employment and Training Administration. Once the Labor Department approves the request, the employer may apply seek approval for an H-1B visa with the Bureau of Citizenship and Immigration Services. Once the USCIS approves the sponsoring employer's request, the alien employee may apply for the H1-B visa at the nearest U.S. embassy or consulate.

Duration and Extension

The H-1B visa is issued for a maximum of three years, and may be extended by up to an additional three years. After six years of H-1B status, the visa holder must remain outside the United States for one year before again being eligible to apply for an H-1B visa.

At present, H-1B visa applicants may start to work for their sponsoring employer from the time the visa application is filed. If the application is rejected, work authorization ceases.

During the term of the H-1B visa, the visa-holder may only work for the sponsoring employer in the job specified in the sponsoring employer's petition. If an H1B visa holders wish to change jobs, they must obtain a new H1-B visa for the new job. This can be done without leaving the United States by filing a new petition with the Bureau of Citizenship and Immigration Services.

Visa Eligibility for a Spouse and Minor Children

The spouse and unmarried, minor children of an H-1B visa holder are eligible for H-4 visas, although they will not be permitted to work in the United States.

Converting an H-1B Visa

With what is known as "dual intent" petitioning, an H-1B visa holder may apply for a change in visa status or take other steps toward permanent U.S. residency without affecting the H-1B status. Most H-1B holders who wish to change their status will benefit from the assistance of a qualified immigration lawyer.

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