Qualifying for a H1B Visa

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The H1B category is used by US employers to bring foreign professional workers temporarily to the US. This visa classification is reserved for specialty occupations, which means that the occupation must require the theoretical and practical application of specialized knowledge.

The government restricts the number of H1B visas that can be issued by the USCIS each fiscal year. The fiscal year begins on October 1. The government can change the number of available H-1B visas at any time. Employers can file visa petitions as early as six months before the start of the fiscal year, or as of April 1 for employees that will start working on October 1. The available H1B visas are often used up in the first weeks and months after April 1.

To qualify under this classification, one should have a Bachelor’s degree or its equivalent in a specialty related to the offered employment. The H1B visa can be used for temporary employment in many professional fields, including engineering, mathematics, physical sciences, computer sciences, medicine and health care, education, biotechnology, and business specialties.

The H1B visa requires employers to file a Labor Condition Application with the Department of Labor (DOL). H1B status also requires filing a visa petition with the USCIS. Labor Condition Applications and visa petitions have to be filed by the US employer.

USCIS will generally not grant H1B status to self-employed people. A petition must be filed by an employer. The US employer must have the ability to hire, pay, and supervise the work of the employee. The employer must also have a Tax ID number from the Internal Revenue Service (IRS). If an H-1B employee plans to work for multiple employers (either full-time or part-time), each employer must file a separate H-1B petition. An H-1B worker may only undertake employment that is specifically authorized by USCIS.

H1B status is granted for up to three years at a time. If the employer wishes to continue the employment after three years, it is possible to extend the employee’s H1B status for an additional three years. After a total of six years, the employee must leave the US for a minimum of one year before being allowed to re-enter H-1B (or L) status. If the employee wants to get a Green Card, it is possible to extend the H-1B visa beyond six years

Visas are available for the accompanying spouse and minor children of an H-1B worker. The visa category reserved for the spouses 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 US, he/she must independently qualify for and obtain another type of visa that allows employment

The H1B has the following categories:

  • The H-1B category has jobs that qualify as specialty occupations and the persons applying for these jobs have to meet certain requirements.
  • The H-1B2 category is for foreign nationals coming temporarily to perform services of an exceptional nature relating to a cooperative research and development project administered by the Department of Defense.
  • The H-1B3 category is for fashion models who are nationally or internationally recognized for achievements, to be employed in a position requiring someone of distinguished merit and ability.

The foreign worker may travel in and out of the US or remain in the US continuously until his/her H-1B status expires.

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