October 5, 2012
The H-1B is a non-immigrant visa that allows U.S. employers to temporarily employ foreign workers in a specialty occupation. Currently the law provides for an annual cap on the H-1B category which is 65,000 visas. Not all H-1B nonimmigrants are subject to this annual cap. The quota does not apply to renewals and certain other applicants. The law also exempts up to 20,000 foreign nationals holding a Master’s or higher degree from the cap. In addition, excluded from the cap are all H-1B non-immigrants who work at (but not necessarily for) Universities and non-profit research facilities. Free Trade Agreements carve out 1,400 H-1B1 visas for Chilean nationals and 5,400 H-1B1 visas for Singapore nationals. However, if these reserved visas are not used, then they are made available in the next fiscal year to applicants from other countries.
The foreign worker must possess at least a Bachelor’s degree or its equivalent and state licensure, if required to practice in that field. The H-1B work-authorization is strictly limited to employment by the sponsoring employer.
The H-1B visa is initially issued for a period of 3 years and may be extended up to 6 years. An exception to maximum length of stay applies in certain circumstances:
- If a visa holder has submitted an I-140 immigrant petition or a PERM labor certification prior to their fifth year anniversary of having the H-1B visa, they are entitled to renew their H-1B visa in one-year or three-year increments until a decision has been rendered on their application for permanent residence;
- If the visa holder has an approved I-140 immigrant petition, but is unable to initiate the final step of the green card process due to their priority date not being current, they may be entitled to a three-year extension of their H-1B visa.
One of the reasons that makes the H-1B visa so desirable is that, unlike many other non-immigrant visa categories, it is a "dual intent" visa which means the H-1B worker may continue on to obtain a permanent resident status (“green card”). In addition, this dual intent means that an H-1B visa will not be denied simply because a person has an intention to become a permanent resident.
If an H-1B worker quits or is his employment is terminated by the sponsoring employer, the worker must either apply for and be granted a change of status to another non-immigrant status, switch (“port”) to another employer, or leave the U.S. within a short period of time.
