- Attainment of a
bachelor’s or higher degree in the specific specialty (or it equivalent)
as a minimum for entry into the occupation in the United States.
About 40% of all
labor condition applications (LCAs) are approved for computer professionals, while
an additional 40% are approved for health care professionals, such as physical
therapists.
The next largest
occupation classification is that of university professors and teachers. Other
groups using the H-1B visa include engineers, service professionals such as accountants,
financial analysts, management consultants, lawyers, business executives, scientists
and researchers.
Availability of
H-1B Numbers
The legislation creating
the H-1B category authorizes an annual limit on the number of aliens world-wide
who can enter the United States on this visa. Presently, this number is set at
195,000 per year.
Procedural Requirements
The employer seeking
the services of an H-1B alien and filing the necessary papers to obtain such services
must be a "U.S. employer." A U.S. employer is a person, firm, corporation,
contractor or other association or organization in the United States with an IRS
tax identification number. The U.S. employer must file with the DOL a labor condition
application (LCA) including certain attestations. The employer must attest that
it will pay its H-1B workers the "required wage rate" and will offer
prevailing working conditions to those workers.
INS Petition Procedure
Prior to the admission
to the United States of H-1B workers, the employer must obtain approval from the
INS of a non immigrant work petition. The employer must establish that the alien
will be employed in a qualifying specialty occupation or as a fashion model, and
that the alien has the necessary qualification to perform services in the qualifying
occupation. The petition must be approved by the INS before the H-1B alien worker
may obtain a non immigrant visa to enter the United States to begin performing
services.
Period of Stay
The H-1B petition
may be approved for an initial maximum three-year period (not to exceed the period
of validity of the certified labor condition application), and the H-1B worker
may be admitted to the United States for the full period of time approved in the
petition, also up to three years. Petition extensions may be obtained up to an
additional three years, for a total maximum period of stay of six years. The actual
periods of initial admission and extension of stay will vary depending on the
needs of the employer.
Limitation on Admission
or Extension
The employer may
not obtain admission for an H-1B worker if the worker has already been present
in the United States continuously in either the H-1B or L-1 categories for the
preceding six years. Periods of stay in the H-1B and L-1 categories are added
together and both count toward the six-year limit. When the alien reached the
limit, he or she must reside abroad for a period of one year before he or she
can reenter the United States in the H-1B category.
Period of Visa Validity
and Period of Admission
An initial H-1B petition
may be approved for a three-year period, and an H-1B non immigrant visa may be
issued at a U.S. consulate for a period of validity equal to the petition approval
period. The actual period of visa validity, however, is determined on the basis
of reciprocity with the alien worker’s country of nationality.
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