H-1B – A visa classification for foreign nationals to work in specialty occupations which require the theoretical and practical application of a body of highly specialized knowledge requiring completion of a specific course of higher education. H-1B visas are also used by foreign nationals who will be employed temporarily in a specialty occupation or as a fashion model of distinguished merit and ability. This classification requires a labor attestation issued by the U.S. Secretary of Labor; it also applies to government-to-government research and development, or co-production projects administered by the U.S. Department of Defense.
What is a specialty occupation?
A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.
Is there an annual limit on the number of H-1B aliens?
Yes. The current law caps the annual issuance of new H-1B visas at 65,000. Congress has provided that the first 20,000 H-1B petitions filed on behalf of foreign nationals who have earned a U.S. master’s degree or higher are exempt from the fiscal year cap. Up to 6,800 visas are set aside from the cap citizens of Chile and Singapore.
- The H-1B Petitioning Employer is an institution of higher education or related or affiliated nonprofit entity, nonprofit research organizations, or governmental research organizations.
- Petitions to Amend or Extend H-1B status (unless the prior H-1B was cap-exempt).
What is the Filing Period of Cap-Subject H-1B?
An employer may file for a prospective alien employee’s H-1B visa as early as April 1 prior to the Fiscal Year (which begins on the following October 1) on which he hopes to employ an alien in H-1B status. The filing period for the fiscal year continues until a sufficient number of petitions to meet the cap are reached for the year. From April 1st to April 7th, 2015, during the filing period for the 2016 Fiscal Year, USCIS received approximately 233,000 H-1B petitions and used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the H-1B cap. Based on our previous research data from USCIS, this is the highest number of petitions ever filed at USCIS for H1B quota. The previous highest number of H-1B petitions was filed in 2001, when the H1B quota was 195,000 and the overall H1-B petitions filed were about 201,543
How can I apply for an H-1B visa?
H-1B status requires that a U.S. employer sponsor the prospective alien employee. There are 2 steps to filing an H-1B petition.
- First, the employer must file a labor condition application (LCA) with the Department of Labor attesting to several items, including payment of the prevailing wage for the offered position, and the working conditions offered.
- Second, only after the DOL certifies the LCA, the employer may file the H-1B Petition with USCIS, which includes the certified LCA, a Form I-129 Petition, H Classification Supplement, and H-1B Data Collection and Filing Fee Exemption Supplement, supportive documentation and filing fees.
When Does the Validity Period for a Cap-Subject H-1B Petition Become Valid?
The first possible date for H-1B classification to become valid, if the H-1B was cap-subject, is October 1 of the given fiscal year.
What if I was an F-1 Student and my status expires prior to October 1 of the upcoming H-1B Fiscal Year?
Certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire, and up to the start of their approved H-1B employment period. This is referred to as the “cap-gap” provision, because it fills the gap between the end of F-1 status and the beginning of H-1B status.
H-1B petitions must be timely filed on behalf of an eligible F-1 student. Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period, while the student’s authorized duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion OPT, and the 60-day departure preparation period, commonly known as the “grace period”).
Once an H-1B petition is timely filed, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed. If the student’s H-1B petition is selected and approved the student’s extension will continue through September 30th unless the petition is denied, withdrawn, or revoked. If the student’s H-1B petition is not selected and approved, the student will have the standard 60-day grace period from the date of the rejection notice or their program or OPT end date, whichever is later, to depart the United States.
Students are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.
How long can an alien be in H-1B status?
Under current law, an alien can be in H-1B status for a maximum period of six years at a time. After that time an alien must remain outside the United States for one year before another H-1B petition can be approved. Certain aliens working on Defense Department projects may remain in H-1B status for 10 years. In addition, certain aliens may obtain an extension of H-1B status beyond the 6-year maximum period, when:
- 365 days or more have passed since the filing of any application for labor certification that is required or used by the alien to obtain status and an employment-based immigrant, or
- 365 days or more have passed since the filing of an employment-based immigrant petition.
Who can an H-1B employee work for?
H-1B employees may only work for the petitioning U.S. employer and only in the H-1B activities described in the petition. The petitioning U.S. employer may place the H-1B worker on the worksite of another employer if the worksite was listed on the LCA and all applicable rules (e.g., Department of Labor rules) are followed. H-1B aliens may work for more than one U.S. employer, but must have a Form I-129 petition approved by each employer.
What if the H-1B employee’s circumstances change?
As long as the H-1B employee continues to perform the work described in the H-1B Petition for the H-1B employer, most changes will not mean that an alien is out of status. H-1B employees may change employers without affecting their status, provided that new employer file an H-1B petition for the H-1B employee before he or she begins working for the new employer. The merger or sale of an H-1B employer’s business will not affect the H-1B employee’s status in many instances. However, if the change means that the H-1B employee is working in a capacity other than the specialty occupation for which they petitioned, it is a violation of status.
Must an H-1B employee be working at all times?
As long as the employer/employee relationship exists, an H-1B employee remains in status. An H-1B employee may work in full or part-time employment and remain in status. An H-1B employee may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status.
Can an H-1B employee travel outside the U.S.?
Yes. A foreign national in H-1B status may travel internationally and reenter the U.S. during the validity period of the H-1B visa.
H-2A – temporary or seasonal agricultural workers
H-2A is a visa classification for foreign nationals to work in temporary agricultural jobs. H-2A visas are used by U.S. employers to fill jobs that are temporary, seasonal, or intermittent and cannot be filled by U.S. workers. This classification requires an employer to obtain a temporary labor certification issued by the U.S. Secretary of Labor. After the employer obtains the labor certification, it can petition for a prospective employee. Once the petition is approved, the prospective worker can apply for an H-2B visa, or in some cases, directly seek admission at a U.S. port of entry.
The maximum period of stay for an H-2A worker is 3 years. After 3 years, the person must depart the U.S. for at least 3 months before being admitted to U.S. again in H-2A status. An H-2A’s workers spouse and children under 21 are eligible to obtain H-4 status and accompany the worker to the U.S., but they are not eligible to work in the U.S. while in H-4 status.
H-2B – temporary or seasonal nonagricultural workers
H-2B is a visa classification for foreign nationals to work in temporary jobs, other than agricultural jobs. H-2B visas are used by U.S. employers to fill temporary jobs that cannot be filled by U.S. workers. This classification requires an employer to obtain a temporary labor certification issued by the U.S. Secretary of Labor. After the employer obtains the labor certification, it can petition for a prospective employee. Once the petition is approved, the prospective worker can apply for an H-2B visa, or in some cases, directly seek admission at a U.S. port of entry.
The maximum period of stay for an H-2B worker is 3 years. After 3 years, the person must depart the U.S. for at least 3 months before being admitted to U.S. again in H-2B status. An H-2B’s workers spouse and children under 21 are eligible to obtain H-4 status and accompany the worker to the U.S., but they are not eligible to work in the U.S. while in H-4 status.
H-3 – trainees other than medical or academic. It also applies to practical training in education of handicapped children
The H-3 visa allows foreign nationals to temporarily come to the U.S. in order to receive training that is not available in their home country or to participate in an exchange visitor program for practical training and experience in the education of children with physical, mental, or emotional disabilities. This visa category is not intended for regular employment; it is designed to provide job-related training for the foreign national to later apply in their career outside of the U.S. In order to obtain an H-3 visa, a U.S. employer or organization must file a petition on behalf of the prospective trainee.
An H-3 trainee’s spouse and children under 21 are eligible to obtain H-4 status and accompany the trainee to the U.S., but they are not eligible to work in the U.S. while in H-4 status.
L-1 – intracompany transferees
L-1 visa allows U.S. and foreign companies to transfer or send executives and managers to the U.S. A U.S. employer may transfer an executive or managerial employee to work in the U.S. if the employee worked at one of its affiliated foreign offices for at least one continuous year in the last 3 years. As well, this visa allows a foreign company that does not have a U.S. office to send an employee to the U.S. for the purpose of creating an office. A transferred employee may be employed by a branch, parent, affiliate, or subsidiary of that same employer in the U.S. in a managerial, executive, or specialized knowledge capacity.
An L-1 employee’s spouse and children under 21 are eligible to obtain L-2 status and accompany the employee to the U.S. Spouses may apply to work in the United States.
O-1 – INDIVIDUALS WITH extraordinary ability in sciences, arts, education, business, athletics or extraordinary achievements in the motion picture and television field
O-1 visa is for foreign individuals who possess extraordinary ability in the sciences, arts, education, business, athletics, or movie and television industry. These individuals must be recognized nationally or internationally for achievements in these fields. In other words, this a visa for individuals who are at the top of their field.
A U.S. employer or the U.S. agent for a U.S. employer or individual’s employer must petition for the individual to be able to come to the United States to work or perform in their area of extraordinary ability. Individuals who are needed to assist the O-1 worker in their events, performances, productions, and activities may apply to accompany the O-1 worker during their time in the U.S. Spouses and children of O-1 workers may also apply to accompany the individual.
P-1 – individual or team athletes, or members of an entertainment group that are internationally recognized
P-1 visa allows athletes that are internationally recognized with a high level of achievement to temporarily come to the U.S. to perform at a specific athletic competition. P-1 visas are also available for members of internationally recognized entertainment groups. A petition must be submitted on behalf of the athlete or group by their U.S. employer or its agent. Once the petition is approved, the athlete or group member may apply for a visa at a U.S. embassy or consulate. The athlete, team, or group’s essential support personnel are also eligible for a P-1 visa.
P-2 – artists or entertainers who will perform under a reciprocal exchange program;
P-2 visas are available to performers and groups who are temporarily performing in the U.S. as part of a government recognized exchange program between a U.S. organization and an organization in another country. While the P-2 visa does not require a level of accomplishment as high as the P-1 visa, the reciprocal nature of the agreement is essential. A P-2 petition must be submitted by a U.S. employer, the U.S. labor organization that negotiated the exchange agreement, or the sponsoring organization.
Once the petition is approved, the performer may apply for a visa at a U.S. embassy or consulate. The performer or group’s essential support personnel are also eligible for a P-2 visa.
P-3 – artists or entertainers who perform under a program that is culturally unique
P-3 visas are available to artists and entertainers that are temporarily coming to the U.S. to perform, teach, or coach under a program that is culturally unique. “Culturally unique” includes a style or artistic expression, methodology, or medium that is unique to a particular country, nation, society, class ethnicity, religion, tribe, or other group of persons. The artist or entertainer must be coming to the U.S. to participate in events that will further the understanding and development of their art form. A petition must be submitted a U.S. employer or sponsoring organization.
Individuals who are needed to assist the performance of the P-3 entertainer or artist may apply to accompany the individual or group during their time in the U.S. Spouses and children may also apply to enter the U.S. in P-4 status. Family members in P-4 status may not work in the U.S., but they may attend schools or college.
Q-1 – participants in an international cultural exchange program for the purpose of providing practical training, employment, and the sharing of the history, culture, and traditions of the alien’s home country
Q-1 visa is available to participants in international cultural exchange programs that have been designated by USCIS. This visa differs from a J visa for educational and cultural exchange whose programs are designated by the Bureau of Consular Affairs. Those in Q-1 status participate in employment oriented programs with the purpose of facilitating the sharing of international cultures. The sponsoring organization in the U.S. must file a petition on behalf of the exchange visitor and show that they maintain an international cultural exchange program.
Other Non-Immigrant Visas
B-1/B-2 – visas for temporary visitors
B-1 and B-2 visas are for foreign nationals who wish to enter the U.S. for a limited period of time for business, pleasure, tourism, or visiting purposes. The initial maximum permitted length of stay with a B-1/B-2 visa is usually 6 months. A business visitor with a B-1 visa can participate in business activities on behalf of a foreign employer, such as negotiating a contract, attending a conference, consulting with associates, and attending short-term training. However, a person who enters with a B-1 visa is not permitted to receive a salary from a U.S. employer.
F, M, J, H-3 – visas for academic and vocational students, trainees, exchange visitors
F-1 student visa is to attend an accredited and approved college, seminary, conservatory, high school, elementary school, or other academic institution or language program that culminates in a degree, diploma, or certificate. F-1 students must be enrolled as full-time students and are subject to work restrictions.
M-1 visa is available for students who wish to be enrolled in vocational or other nonacademic programs.
J-1 visa is for exchange visitors who intend to participate in an approved program in order to teach, lecture, study, observe, research, consult, receive training, demonstrate special skills, consult, or receive graduate medical education or training. After obtaining a Form DS-2019 from a sponsoring organization, the prospective exchange visitor may apply for their J-1 visa at a U.S. Embassy or consulate.
J-1 exchange visitor’s spouse and children under 21 may apply for J-2 status to accompany the exchange visitor to the U.S.
A and G visas for diplomatic and international EMPLOYEES
A-1 and A-2 visas are intended for diplomats and other foreign government officials. To qualify for an A visa, a foreign officer, consular post employee, and other government officials must be traveling to the United States on behalf of their government to solely engage in official activities for that government. Personal employees, attendants, and domestic workers for government officials are able to apply for an A-3 visa to accompany the government official to the U.S.
G visas are for representatives of international organizations and designated representatives of foreign governments. To qualify for a G visa, the representative must be entering the U.S. with the purpose of working in their official capacity.
C and D VisaS – For FOREIGN CREW MEMBERS AND aliens in transit
C and D visas are for crew members of an aircraft or ship that will be transiting through the United States or its waters.
The information contained herein does not establish an attorney-client relationship and does not constitute legal advice. Prior results depend on a number of factors unique to each matter and do not guarantee a similar outcome.