The H-1B category is used by U.S. employers to bring foreign professional workers temporarily to the U.S. This category is reserved for specialty occupations, which means that the occupation must require the theoretical and practical application of specialized knowledge. Beneficiaries must have at least a Bachelor’s degree or its equivalent in a specialty related to the offered employment. The H-1B visa can be used for temporary employment in many professional fields, including, but not limited to, engineering, mathematics, physical sciences, computer sciences, medicine and health care, education, biotechnology, and business specialties.
Visas are available for the accompanying spouse and minor children of an H-1B worker. The visa category reserved for the spouse and children of H-1B workers is called the H-4 visa category. H-4 visa holders may not work. If an accompanying family member wishes to work in the U.S., he/she must independently qualify for and obtain another type of visa that allows employment.
Employers must first determine the prevailing wage for the offered position and file a Labor Condition Application with the Department of Labor (DOL). By filing the Labor Condition Application, the employer is agreeing to employ the H-1B worker under conditions that do not undermine the working conditions, benefits or wages of U.S. citizen employees. The Labor Condition Application is filed on Form ETA 9035. Once the Labor Condition Application is approved, the employer must file an H-1B visa application with the USCIS using Form I-129, Petition for a Nonimmigrant Worker.
H-1B status is granted for up to three (3) years at a time. If the employer wishes to continue the employment after three (3) years, it is possible to extend the employee’s H-1B status for an additional three (3) years by filing another H-1B visa application requesting an extension. After a total of six (6) years, the employee must leave the U.S. for a minimum of one (1) year before being allowed to re-enter in H-1B (or L) status. If the employee is in the process of obtaining a green card, it may be possible to extend the H-1B visa beyond six (6) years.
The government limits the number of H-1B visas that may be issued by the USCIS each fiscal year. The fiscal year begins on October 1. The government can decide to change the number of available H-1B visas at any time. Currently, there is an annual limit of 85,000 H-1B visas. Of this number, 20,000 visas are reserved for people with at least a Master’s degree earned at a U.S. institution of higher education. Because of this limit, called the “cap,” H-1B visas are often in high demand. Caps control the number of people that can be issued a visa to enter the United States in a given fiscal year.
Employers can file H-1B visa applications as early as six (6) months before the start of the fiscal year, or as of April 1, for employees that will start working on October 1. Employers should be ready to file H-1B visa applications on April 1 for employees that will start work on October 1. Employers need to plan well in advance in order to obtain an H-1B visa if visas are in high demand for that particular year. Employers should check if visas will even be available for the desired time period before beginning the H-1B visa application process.
The 85,000 H-1B visa “cap” only applies to “new” H-1B employees. Employees who currently hold H-1B status and want to extend status or change jobs or employers will not be counted against this number. In addition, workers who have held H-1B status within the past six (6) years are not counted against this number.