The H-1B visa is often considered a professional's visa because it requires both theoretical or technical expertise in a specialized field and a bachelor's degree or higher (or equivalent). It is a type of work visa
Examples of potentially qualifying specialty occupations include: architects, engineers, computer programmers, accountants, doctors and college professors, certain fashion models of distinguished merit and ability and up to 100 persons who will performing services of an exceptional nature in connection with the U.S. Department of Defense research and development projects or coproduction projects.
To obtain an H-1B visa, an applicant must first obtain a job offer from a qualified employer, who is commonly known as the sponsor. Individuals typically cannot commence the process for their own H-1B visa; only the sponsor can. However, this 2006 administrative appeals opinion allowed a U.S. corporation established solely by a self-petition H-1B beneficiary successfully to sponsor her H-1B application on the theory that legally the U.S. corporation was a separate entity from the alien worker founder. In 2010, USCIS also issued a series of frequently asked questions which states that a company owned by the foreign worker could sponsor the worker for an H-1B provided that the governance board, composed of more than just the owner-worker, could hire and fire the owner-worker. (But see this January 8, 2010 Neufeld Memo, which states that a self-petitioning owner worker is ineligible because he or she cannot be fired.) Because of these two somewhat inconsistent documents, self-petitions for H-1B even through a corporate or LLC entity is a grey area fraught with danger for the applicant, and attorney services from Messing Law Offices or other qualified professional are indispensible.
An H-1B visa is ordinarily valid for up to six years, with actual work authorization valid for three years and renewable for another three upon re-application, and if a petition for alien employee (form I-140) is filed before the commencement of the six year period, the H-1B theoretically can be renewed beyond the six years to allow for processing of the permanent resident application.
The H-1B visa also entitles the husband or wife of the visa holder and children to accompany the principal visa holder. A spouse and minor children of the H-1B visa holder can obtain H-4 visas and studyh, but accompanying spouses can only obtain work authorization in the H-1B exention period of the principal H-1B visa holder while waiting for a grant of permanent residency beyond the sixth year. Other H-4 spouses cannot work, unlike the E and L visa family dependents.
One of the main advantages of the H-1B visa is that it is a dual intent visa which means that the visa holder can apply for permanent residency while working and living in the US, which is true for the E and L visas as well, but otherwise is not possible with non-immigrant (temporary) visas.
Many H-1B visas are subject to a numerical limit, called a cap, each year. As of 2015, USCIS currently maintains a cap of 65,000 on H-1B visas generally, but since 2004, 20,000 new H-1B visas for foreign workers with a Master's or higher level degree from a U.S. academic institution are also available, which are statutorily exempted from the general cap.
First time applications for cap subject H-1B's generally are filed on or before April 1 for a work start date of October that same year. The timing of the application, start date and existing visa expiration date requires careful planning to avoid falling out of status while waiting for approval, which could have disasterous consequences for the foreign national worker, as denial could then be legally required.
Some H-1B positions are exempt from numerical cap limits altogether, which are called cap-exempt. H-1B nonimmigrants who are employed, or who have received an offer of employment, by institutions of higher education or a related or affiliated nonprofit entity, as well as those employed, or who will be employed, by a nonprofit research organization or a governmental research organization are exempt from the cap.
Once granted, cap subject H-1B visas are no longer subject to the cap for renewals. Employees on an H-1B under certain circumstances are allowed to change employees without approval of the sponsoring employer.
H-1B visas are highly desirable and in FY 2014 and 2015, both the general cap and graduate exempt categories were oversubscribed on the first day that applications could be filed for H-1B visas with USCIS, with the institution of a lottery to distribute H-1B places equitably. In 2014, less than half the qualified candidates actually got an H-1B; in 2015, approximately one-third only qualified.
Apart from H-1B visas, other available visa categories may include:
At Messing Law Offices, we provide high quality legal services and expertise to families, working men and women, and businesses. If you have a concern in the areas of family based immigration, business based immigration, employment based immigration, or naturalization and you are seeking the help of an experienced immigration lawyer, call Messing Law Offices (520) 512-5432 for professional Arizona immigration attorney assistance.