H-1b FAQs

H-1B Visas - Specialty Occupations - Questions and Answers

What is an H-1B?
An employer seeking to employ a foreign worker temporarily in a specialty occupation uses the H-1B program. Specialty occupations require theoretical and practical application of a body of highly specialized knowledge along with at least a bachelor's degree or its equivalent. Examples inclde architecture, computers, accounting, teaching, engineering, mathematics, physical sciences, medicine and health, education, and business specialties, etc. H-1B is also used for fashion models of distinguished merit and ability.
<top>

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, computers, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.
<top>

How can I demonstrate to the USCIS that the position is a specialty occupation?

In determining whether a position is a specialty occupation, the USCIS looks at various factors:

the nature and complexity of the specific job duties
the job description for the position
the qualifications of other persons employed in the position
the advertisements used to recruit for the position
the advertisements and job orders used by employers in the same industry in seeking to fill the postion and
the positions requirement as reflected in the Department of Labor's Occupational Outlook Handbook.

<top>

What if I do not have a bachelor's degree, may I still apply for the H-1B visa?

Professionals without a bachelor’s degree may still be eligible for the H-1B classification in some instances. In general, the “specialty occupation” requirement may be met by showing that the applicant:

Has a full state licence to practice in the occupation, if licensure is required;
Has completed the degree required for the occupation or has experience in the specialty equivalent to such a degree and can demonstrate a recognition of his expertise in the specialty through progressively responsible positions relating to the specialty.

A candidate who does not meet the degree requirement may use a combination of education, training and experience to meet the standard of the “specialty occupation” requirement for the H-1B visa. Such candidates should seek a professional evaluation of their credentials by a reliable credential evaluation service. Such candidates should assemble the following for submission to the USCIS to make the best case possible for approval:

Evaluation of all foreign education (including degrees, diplomas and transcripts);
Documentation and evaluation of all other course work and training programs (including in-house training, seminars by professional associations or at local schools);
Written evaluation from a recognized U.S. credential evaluation service or distinguished U.S. university professor of the candidate’s educational course work;
Documentation of membership in professional associations, any licenses, articles about the applicant in recognized professional journals, magazines or articles;
Evidence of membership in professional organizations that normally require bachelor’s degrees;
Documented evidence of professional work experience, including experience letters with detailed job descriptions for previous positions held. This should be accompanied by a written expert evaluation of such professional experience. The USCIS would usually applies a formula which treats three years of experience as equivalent to one year of college education.

<top>

May I still apply for an H-1B visa even though my education was not completed in the U.S.?

Foreign degree holders qualify for H-1B visa status even if the degree is obtained from a foreign country so long it is the equivalent of a U.S. Bachelor’s Degree. Credentials in a foreign language must be accompanied by certified English translations. Applicants are well-advised to obtain a written evaluation of their credentials, transcripts, diplomas and degrees from an approved Credential Evaluation Service for inclusion in their H-1B visa application package to the USCIS. Masters Degrees from a non-U.S. institution do not qualify for the additional 20,000 visas allotted to U.S. Masters Degree holders.
<top>

Is there an annual limit on the number of H-1B aliens?

Yes. The current law limits the number to 65,000 aliens who may be issued a visa or otherwise provided H-1B status in FY2004 and to the present. (The numerical limitation was temporarily raised to 195,000 in FY2001, FY2002 and FY2003). Within the 65,000 visas now available annually, 6,800 must be set aside for H-1B non-immigrants under the Chile and Singapore Free Trade Agreements.
<top>

Does the annual limit apply to me if I hold a Master's degree?

Yes, the numerical cap on H-1Bs applies to master's degree holders except that those who obtained their master's degree in the United States are allotted an additional 20,000 H-1B visas annually. As such U.S. Master's degree holders may continue applying for H-1B visas after the expiration of H-1B visas for others.
<top>

Who is exempt from the H-1B cap and what kinds of jobs are exempt for the annual H-1B visa cap?

The following are exempt form the H-1B annual numerical cap:

J-1 non-immigrant physcians who received a Conrad-30 waiver of the two-year foreign residence requirement based on sponsorship by a state health department;
Individuals employed at higher educational institutions and their related or affiliated non-profit entities;
Individuals employed by non-profit research organizations or governmental research organizations; and
Under certain circumstances, an individual who has already been counted toward the cap in 6 years before the approval of a new petition.

Note that an individual who was previously exempt from the cap may become subject to the cap if it changes from an exempt employer to a non-exempt employer.
<top>

Given that the FY07 cap has been reached, when can I submit an H-1B petition for the upcoming year?

New H-1B visas are issued annually in October. So the next set of H-1B visas will be available in October 2008. However, applications for H-1B visas for the upcoming visa year may be filed as early as April 2008. Applicants must select an H-1B start date no earlier than October 1, 2008, the date that visas become available. Such applicants may begin work upon the approval dates of the H-1B visa but no earlier than October 1, 2008.
<top>

How does one apply for an H-1B visa?

H-1B status requires a sponsoring U.S. employer. The employer must file a labor condition application (LCA) with the Department of Labor attesting to several items, including a payment of prevailing wages for the position, and working conditions offered. The employer must then file the certified LCA with a Form I-129 petition plus accompanying fee. (Prior to FY2004, employers were required to submit an additional fee to sponsor the H-1B worker, unless specifically exempt). Based on the USCIS petition approval, the alien may apply for the H-1B visa, admission, or a change of non-immigrant status. For additional information on employer's filing needs, please visit the Department of Labor's Foreign Labor Certification page.
<top>

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. 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 Department of Defense 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, Form ETA 750, that is required or used by the alien to obtain status as an EB immigrant, or
365 days or more have passed since the filing of an EB immigrant petition

<top>

Who can an H-1B alien work for?

H-1B aliens 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 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.
<top>

What if the alien’s circumstances change?

As long as the alien continues to provide H-1B services for a U.S. employer, most changes will not mean that an alien is out of status. An alien may change H-1B employers without affecting status, but the new H-1B employer must file a new Form I-129 petition for the alien 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 alien’s status in many instances. However, if the change means that the alien is working in a capacity other than the specialty occupation for which they petitioned, it is a status violation.
<top>

Must an H-1B alien be working at all times?

Can an H-1B alien travel outside the U.S.?

Yes. An H-1B visa allows an alien holding that status to reenter the U.S. during the validity period of the visa and approved petition.
<top>

Can an H-1B alien intend to immigrate permanently to the U.S.?

Yes. An H-1B alien can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident (LPR) status without affecting H-1B status. This is known as "dual intent" and has been recognized in the immigration law since passage of the Immigration Act of 1990. During the time that the application for LPR status is pending, an alien may travel on his or her H-1B visa rather than obtaining advance parole or requesting other advance permission from Immigration to return to the U.S.

Depending on the level of education and/or training, an H-1B visa holder may qualify for a green card under one or more of the following preferences: EB-1, EB-2, or EB-3.
<top>

When and how can I change employers after my H-1B visa petition is approved, or after filing my I-140/Green Card petition?

Read USCIS article on portability
<top>

< Prev Next >