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The H-1B is a non immigrant visa used by a professional worker who can be employed in an occupation considered to be 'professional' in nature.
What is a professional occupation?
A professional or 'specialty' occupation requires that the position be filled by someone who has acquired a at least a bachelor’s degree or its equivalent. For example, architecture, attorney, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.
Is there a quota on the number of H-1B visas issued each year?
Yes. The current law limits to 65,000 the number of aliens who may be issued a visa or otherwise provided H-1B status in Fiscal year 2004, that is form October 2003 thru October 2004 (The numerical limitation has been reduced substantially from 195,000 in Fiscal year 2001, Fiscal year 2002 and Fiscal year 2003.)
What is basically required to obtain a H-1b Visa?
 | The position must be considered a 'specialty' or 'professional' occupation -that is it must normally require an applicant who has obtained a 4 year college degree or degree equivalent |
| 3 years of relevant experience equates to one year of full time education under the USCIS's 3to 1 rule-therefore 12 years of professional experience will replace the degree requirement |
| the employer must pay the prevailing wage to the H-1b employee-this is often determined by requesting a prevailing wage determination from the Department of Labor |
| The position DOES NOT have to be full time-a H-1b employee can hold several part time positions at the same time |
For additional information consult the Department of Labor’s Foreign Labor Certification page.
How long does H-1b status last?
The H-1b is usually issued for an initial period of three years and can be extended for a maximum total period of six years at ay one time. After six years the H-1b worker must remain outside the U.S. for one year before another H-1B can be obtained.
However, an extension may be obtained beyond the 6-year maximum period, in the event that at least one year before the sixth-year upon which the H-1b will normally 'max-out' the worker has filed for labor certification.
Who can the H-1b actually work for?
H-1B aliens may only work for US employer who actually field the petition and may only perform the tasks included in the original petition. Furthermore, the employee may only work at the worksites listed on the original petition and for which a prevailing wage determination has been obtained. If the employee is assigned to another location for anything other than a truly temporary period-such as if a computer programmer has to travel to a client's place of work to 'troubleshoot' a system-then a further prevailing wage determination must be made and an amended H-1b petition filed.
For example, if an employee is assigned to work on projects and /or accounts at a different location for weeks on end, an amended petition would be required.
What if the alien’s circumstances change?
Provided the worker continues to be employed by the same petitioning employer at the same work site most changes will not affect their status and a new petition will not be required.
For example, a normal promotion will not require an amended petition as long s the job duties are essentially the same. The merger or sale of the employer will only not normally require an amended petition. However, if the changes result in the worker working in a capacity other than that stated in the petition a new petition will be required to prevent the worker falling out of status.
The question of dual intent-can a H-1b worker intend to immigrate permanently to the US?
The answer is Yes. 'Dual intent' is permitted for a H-1b nonimmigrant.
A worker can hold a H-1b visa simultaneously with applying for permanent residence and adjusting status to that of permanent resident.
Furthermore, when applying for adjustment of status, a holder of a H-1b can travel to and form the United States without requesting 'advanced parole' to do so.
For regulations on H-1B visas click here
For DOL latest on h-1b click here
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