H-1B visas are non-immigrant visas that used to hire foreign workers in “specialty occupations.” H-1B visas are limited in duration, and are generally for a six-year period. There are some exceptions that would allow an H-1B visa to be granted in increments of either one year or three years if the I-40 has been approved, but the individual’s priority date has not yet become current.
To qualify for H-1B status, it must be shown that the job for which the employer wishes to hire the employee qualifies as a “specialty occupation,” and that the employee is qualified for the position.
A “specialty occupation” is one that requires at least a baccalaureate degree, or an equivalent combination of education and experience. The degree required must be the same degree held by the employee, or the employee’s experience must be relevant to the specific position. USCIS will evaluate foreign degrees held by the employee to determine if it is equivalent to a United States baccalaureate degree.
Before an employer may petition for H-1B status for a potential employee, it must provide notice to employees by posting a description of the position, including the title and offered salary, in at least two conspicuous places where the employee will be for at least 10 business days. The employer must then file a Labor Condition Application (LCA) with the Department of Labor, which certifies that the employer will pay the prevailing wage in comparison to United States workers in similar positions.
H-1B visas may be granted initially for a period of three years, which may be extended for a maximum of six years. H-1B status recognizes the doctrine of dual intent, which allows individuals who are present in the United States under H-1B status to simultaneously apply for immigrant status.
H-1B visa holders’ spouses and children under the age of 21 years old will be admitted through H-4 status. Spouses and children are not permitted to work in the United States under this status.
If an H-1B visa holder is terminated from his employment before his or her visa expires, the employer must pay for all of the employee’s reasonable expenses to return to his or her home country.