The H-1B visa is a non-immigrant visa. It is designed to allow U.S. employers to recruit & employ foreign professionals in specialty occupations within the USA for a specified period of time. The H-1B program provides the opportunity for foreign workers in specialty occupations to legally live and work in the US for a total of 6 consecutive years, and entitles their spouse and children (under the age of 21) to accompany them and legally live in the USA on an H-4 visa (although their spouse and children cannot work unless they obtain their own work visa).
In the H-1B petition process, the employer is the petitioner, while the foreign worker is the beneficiary. Foreign individuals themselves cannot apply for an H-1B visa to allow them to work in the US. The number of H-1B visas issued each year is subject to an annual cap that is determined by the US Congress.
Foreign workers must possess at least a bachelor's degree or its equivalent (this requirement can usually be met by having a 3-year degree and 3 years of relevant post-graduate experience). Occupations that qualify for H-1B visas typically require highly specialized knowledge in a field of human endeavor including, but not limited to: IT, Architecture, Engineering, Mathematics, Physical Scientific Research, Social Science, Biotechnology, Health Care/Medicine, Education, Law, Accounting, Business, Theology, Arts, Computing, Finance, Banking, Marketing, Sales, Recruiting, and Telecommunication.
Aside from the requirement that the position be a specialty occupation, the employer must first file a Labor Condition Application (LCA), Form ETA 9035 or Form ETA 9035E, with the Department of Labor (DOL). An employer filed LCA attests that the H-1B visa worker is being paid the prevailing wage for the work being performed, and that employment of the foreign worker will not adversely affect the working conditions of similarly employed U.S. workers.
The initial H-1B visa may be issued for up to three years. It may then be extended in the first instance for up to two years, and later on for one year, for a maximum of 6 consecutive years. In some cases, the H-1B visa can be extended beyond the 6 year limit. The H-1B visa can also “recapture” time spent abroad while in H-1B status. If an alien opts to “recapture” time abroad, then periods of time spent not in the US will NOT count against the 6 year limit of the H-1B visa.
One of the privileges of the H-1B visa, as opposed to many other non-immigrant visas, is that it is a ‘dual intent’ visa. In other words, under the terms of the H-1B visa, the alien employee can also apply for a Green Card and become a permanent resident, and the H-1B visa will not be denied or invalidated. If an employer is willing, the employer can sponsor a foreign employee in H-1 status for a green card application.
Significantly, once an employer has brought a foreign worker to the U.S. on the basis of an H-1B visa, if the company should dismiss that worker before the expiration of the visa, the company is responsible for any ticket costs that the worker incurs traveling back to his/her place of last foreign residence. This provision is dependent upon dismissal and is not relevant if a worker chooses to resign.
If a foreign worker in H-1B status resigns or is dismissed from the sponsoring employer, the worker must either apply for and be granted a change of status to another non-immigrant status; find another employer (subject to application for change of visa); or leave the United States.
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