1. The H-1B Visa: Temporary Employment-Based Visa

The H-1B visa is designed to attract highly skilled professionals in a specialty occupation to work in the U.S. on a temporary basis. The employer in an H-1B application process is the petitioner while the alien is the beneficiary. The U.S. employer must offer employment in a specialty occupation, either on a full or part time basis.

A specialty occupation requires theoretical and practical application of a body of specialized knowledge.  Examples of specialty occupations include: engineers, nurses, professors, researchers, computer programmers and other professionals.

The educational requirement specifies that the alien possess at least a bachelor's degree or its equivalent.  If the applicant was awarded his/her degree from an institution not located in the U.S., that degree must be evaluated to determine if it is comparable to a U.S. awarded degree. If the alien possesses a U.S. degree or its equivalent, no prior employment experience is required.

If an alien does not meet the educational requirements, 'degree-equivalent' experience or training may be substituted, whereby three years of professional experience is considered equivalent to one year of college education.

Furthermore, if a license is required under state law to practice a specific specialty occupation, the alien must hold the appropriate license. The employer must also pay the minimum prevailing wage, as determined by State Employment Agency rules or other approved standard guidelines. 

The employer must attest to the following six (6) conditions:

1) The employer will pay the H-1B employee the higher of

1. the actual wage rate that it pays to all other individuals with similar experience and qualifications, or
2. the prevailing wage level for the occupation in the metropolitan statistical area of employment;  

2) Employment of the H-1B worker will not adversely affect the working conditions of workers similarly employed in the intended area of employment;

3) There is no current strike/lockout involving the prospective H-1B worker's position at his/her workplace;

4) The employer will provide notice of filing of the labor condition application to the employee collective bargaining representative for the H-1B occupation or, lacking such a representative, will conspicuously post such notice at the work site on or within 30 days of filing the Labor Condition Application;

5) The employer will maintain for public examination

1. a copy of the Labor Condition Application filed,
2. documentation of the salary paid to the H-1B employee,
3. an explanation of how the actual wage was determined, and
4. documentation of the basis used for the prevailing wage;

6) The employer must agree to pay the alien the reasonable cost of transportation to return to his or her home country if the employer terminates employment prior to the end of the authorized employment period.

2. H Visa Classifications

The Immigration and Nationality Act provides several categories of nonimmigrant visas for a person who wishes to work temporarily in the United States. There are annual numerical limits on some classifications.

• H-1B classification applies to persons in a specialty occupation which requires the theoretical and practical application of a body of highly specialized knowledge along with at least a bachelor's degree or its equivalent. Examples include architecture, engineering, mathematics, physical sciences, medicine and health, education, and business specialties, etc. H-1B is also used for fashion models of distinguished merit ability.

This classification requires a labor attestation issued by the Secretary of Labor. This classification also applies to Government-to-Government research and development, or co-production projects administered by the Department of Defense;

• H-2A classification applies to temporary or seasonal agricultural workers;

• H-2B classification applies to temporary or seasonal nonagricultural workers. This classification requires a temporary labor certification issued by the Secretary of Labor;

• H-3 classification applies to trainees other than medical or academic. This classification also applies to practical training in the education of handicapped children;

3. H-1B: Temporary Employment-based Visa for Specialty Occupations

The H-1B is a temporary employment-based visa for specialty occupations. US employer can sponsor H-1B visa petition. The maximum stay of an H-1B visa-holder is six years, but the initial request may not exceed three years. The salary of the H-1B applicant must match or exceed the the prevailing wage for that occupation or the actual wage in the workplace. The current law limits the number of foreign workers who may be issued a visa to be 65,000 per year.

An H-1B certification is valid for the period of employment indicated on the Labor Condition Application (LCA), specifically the Form ETA 9035, for up to three years. However, a foreign worker can be in H-1B status for a maximum continuous period of six years. After the H-1B expires, the foreign worker must remain outside the U.S. for one year before another H-1B petition can be approved. Certain foreign workers with labor certification applications or immigrant visa petitions in process for extended periods may stay in H-1B status beyond the normal six-year limitation, in one-year increments.

For a period not to exceed a total of six years, an H-1B visa is available to a foreign employee:

• who will be incumbent in a temporary position;

• who will perform services in a specialty occupation;

• on whose behalf the employer has obtained an approved Labor Condition Application.

Here, "temporary" is defined as that it is not permanent, or that it is for a definite term as opposed to an indefinite term. Also, most professional jobs are classified as "specialty occupations". 

A Labor Condition Application serves, among other things, to ensure that the employer is not paying less than prevailing wage.

4. The Basic Requirements to Get an H-1B Visa

Professional workers with at least a bachelor's degree or equivalent work experience may be eligible for this non-immigrant visa. All H-1B workers must begin with a petitioning employer. It is not possible to be a self-employed H-1B worker. The petitioner must have a legitimate job opening available, and must agree to pay the alien worker the prevailing wage for the occupation in the area where the work will be done.

The job must be one which customarily requires a bachelor's degree as a minimum entry requirement and the alien worker must either have such a degree, or equivalent work experience.

5. Other Different Types of H-1 Visas

An H-1B is a temporary visa. It is valid for three years, and extendable for another three years. People loosely refer to H-1B as H-1. The following variations exist within H-1:

• H-1A: Registered Nurse;

• H-1B1: Specialty Occupation (Professionals)

• H-1B2: U.S. Department of Defense special visas

• H-1B3: Artists, entertainers or fashion models of national or international acclaim

• H-1B4: Artists or Entertainers in unique or traditional art form

• H-1B5: Athletes

• H-1BS: Essential support personnel for H-1B entertainer or athlete.

6. H1B Quota and Counting

H1B workers in the following situations will not be subject to the annual H1B quota of 195,000 (as increased under AC21) for fiscal years 2001, 2002, 2003, or 65,000 thereafter.

    a) Persons employed at a university, affiliated non-profit entity, non-profit research organizations, or government research organization;

    b) Persons who have previously been counted against the H1B quota (a person would only be counted once against the cap unless s/he has a year outside the U.S., thereby resetting the clock on the six-year limit.)

    c) Physicians who obtained a Conrad 20 waiver of the J-1 two-year home residency requirement; Extensions of stay for those already on H1B status;

    d) H1B amendments with the same employer which are not requesting an extension of stay;

    e) Change of employers by a person already on H1B status; and

    f) Persons already engaging in H1B employment who are applying to work concurrently / simultaneously for an additional employer while maintaining their current employment.

The Omnibus Appropriations Act for FY 2005 contains provisions affecting the H-1B nonimmigrant visa category and quota.

7. F1 Student Visa and H-1B Visa

A foreign student may come to the US primarily to gain education, but with an interest in gaining employment experience as well before returning home. To achieve this objective, the individual may initially complete studies, obtain some level of employment experience on one type of non-immigrant visa, and later change to another non-immigrant visa status in order to live and work longer in the US.

The F1 student visa, for example, enables individuals to gain education with some restrictions on their employment eligibility both during and for a one-year period immediately after the completion of studies. Many F1 students later change to the H-1B visa status and work for up to 6 years in the US with this visa status.

8. How To Apply for an H-1B

The petitioning employer begins by filing a Labor Condition Application (LCA) with the Department of Labor (DOL). When the LCA is returned with the DOL endorsement stamp, the employer may then file an H-1B petition with the USCIS. Only after the H-1B petition has been approved and change of status granted, or a nonimmigrant H-1B visa issued, may the alien worker begin working for the employer.

As a special requirement, the employer must agree to pay the return airfare or all reasonable costs to return the H-1B visa holder to his/her home country, if employee terminates employment prior to the expiration date of the H-1B approval notice.

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