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H-1B Visas

Special status for speciality workers

An H-1B visa, known as the "professional worker's visa," is reserved for people within "specialty occupations," who are considered for admission on the basis of their professional education or their skills, or both. It permits U.S. companies to enhance their workforce by employing highly skilled foreigners. It is the most common and, usually, the easiest non-immigrant visa to obtain.

Who is eligible for an H-1B visa?

College degree holders or higher, or

Its equivalent in work experience, or

In rare instances, certain people in specific occupations, such as supermodels, and

A job offer from a U.S. company that agrees to sponsor the visa holder, and

In a position with the sponsoring company that requires the person to hold a four-year degree or its equivalent in experience and the wage paid is the prevailing wage for such a job within that jurisdiction

The spouse and unmarried, minor children of the H-1B visa holder are eligible for H-4 visas, though they will not be permitted to work in the US.

What are the limitations of an H-1B visa?

The visa is good for a maximum of three years, which may be extended another three years. After six years in H-1B status, the person must remain outside the United States for one year before being eligible to apply for another H-1B visa.

The visa-holder may only work for the sponsoring employer in the job specified in the sponsoring employer's petition. If visa holders wish to change jobs, they must obtain a new H1-B visa. This can be done without leaving the United States by filing a new petition with the U.S. Immigration and Naturalization Service.

With the October 17, 2000 enactment of the American Competitiveness in the Twenty-First Century Act of 2000, applicants may begin working at their new job immediately upon filing the petition. Previously, applicants had to wait for approval before beginning work for their new employer. If the new petition is denied, work authorization ceases.

The number of visas issued had been set at 65,000, but was increased to 115,000 through legislation for the year 2000. The 2000 Act extended the limit to 195,000 for each of the next three years. Furthermore, Section 103 of the Act provides that H-1B visas sponsored by higher education institutions, nonprofit research organizations and government research organizations are not to be counted toward the cap.

What is the procedure to get an H-1B visa?

The sponsoring employer must first inquire at a state or local level what the prevailing wage is for the position expected to be filled by the visa holder.

Sponsoring employer files a labor condition application with the U.S. Department of Labor that outlines specific information about the job, including the prevailing wage and the working conditions.

Sponsoring employer then files an I-129 petition with the U.S. Immigration and Naturalization Service (INS) accompanied by a $110 filing fee, as well as an additional $500 fee imposed under the American Competitiveness and Workforce Improvement Act of 1998.

Once the INS approves the I-129 petition, the visa seeker may then apply for the H-1B visa.

Steps to take

An employer files a labor attestation, Form ETA-9035, Labor Condition Application for H-1B Nonimmigrants, with the U.S. Labor Department Employment and Training Administration. Once the employer gets approval from the Labor Department, the employer then files the following with the Immigration and Naturalization Service: A INS Form I-129, Petition for a Nonimmigrant Worker, along with a $110 filing fee

A INS Form I-129W, which allows the INS to record statistical information as required by the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA)

A fee, as required under the ACWIA: $1000 now, $500 before December 17, 2000

The approved labor attestation from the Labor Department

Proof of the alien's academic qualifications and professional experience

A letter from the sponsoring company describing its business and the job it intends to fill with the H-1B visa recipient, why the alien is particularly qualified, and including a statement that the company will pay the costs of the alien's return trip abroad if employment is terminated before the visa authorization period expires

Once the company receives approval from the INS, the prospective H-1B visa holder should then apply for the visa at the nearest U.S. consulate by filing: An optional Form 156, Nonimmigrant Visa Application

A passport photograph

The original H-1B approval notice receipt issued to the company by the INS

Converting Your H-1B Visa

An H-1B visa holder may apply for a change in status or take other steps toward permanent residency without affecting the H-1B status. Called "dual intent," this kind of petitioning by the visa holder has been recognized in U.S. immigration law as acceptable since the passage of the Immigration Act of 1990.

The Competitiveness Act of 2000 provides some much-needed flexibility in the timing of visa conversions, and petitions for permanent status. If an I-140 application for permanent status has been under consideration by the INS for more than 365 days, the six-year limit on living in the US can be extended until a decision is made on the application. The same policy applies to I-485 change of status applicants, but the time limit on the application is 180 days. Filing or converting an H-1B visa can be a complicated process--you should consult with a qualified immigration attorney before doing so.

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