The H-1B Visa Provisions
The H-1B visa category is available for individuals employed in the United States in a "specialty occupation." A specialty occupation requires a bachelor's or higher degree in a specialized field of knowledge as a minimum for entry into the occupation.
Eligibility Requirements
The requirements for an H-1B visa are as follows:
- The employer must extend a valid offer of employment;
- The employer must pay at least the same wage scale (the "prevailing wage") and provide the same working conditions as those existing for U.S. workers;
- The occupation requires a bachelor's or higher degree in a specialized field of knowledge as a minimum qualification; and,
- The foreign national must have the required degree, or its equivalent, in a subject closely related to the position.
Period of Stay
The H-1B visa is valid for three years and may be extended to a total of six years. The H-1B status may be extended beyond 6-year limitation in the following two circumstances:
- If a person has filed a labor certification application or an achievement-based I-140 immigration petition 365 days before the expiration of the six-year limitation, the H-1B visa status may be extended beyond six years in one-year increments until the employment-based permanent residency petition is approved or denied.
- If a person has an employment-based I-140 petition approved, but per-country visa quotas prevent the person from obtaining his or her green card at this time, the H-1B status may be extended for a three-year period. To obtain this 3-year extension, you do not have to have filed your labor certification or achievement-based I-140 petition 365 days before the expiration of your 6-year H-1B limitation.
Filing Procedure
Obtaining H-1B visa status is a two step process:
- Submit a labor condition application to the U.S. Department of Labor, confirming that the employer meets the wage requirements and working conditions;
- File a petition and supporting documentation with the U.S. Citizenship and Immigration Services, demonstrating that the employer and the individual meet the criteria for the H-1B visa.
If the prospective employee is currently in the United States, this process may be used to get approval for a change in employer or a change of status. If the prospective employee is outside the United States, the Immigration Service sends notice of the approval to a U.S. Consulate. The employee then applies at that U.S. Consulate for a visa to enter the United States in H-1B status.
Family Members
A spouse or unmarried child of a person with a H-1B visa status may obtain an H-4 visa. Individuals with H-4 visa status cannot work in the United States, but may attend school.
Termination and Layoffs
If an H-1B worker is terminated or laid off before the end of the visa term, the employer may have to pay the cost of transporting the employee to his/her country of origin.
H-1B workers who lost their jobs must either find another employer to petition on their behalf, change to a different immigration status or return to their home country.
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