FindLaw KnowledgeBasePublished: 2012-11-20
What is an H-1B visa?
United States businesses competing in a global economy want to hire the best candidate for the job to gain an edge over their competitors. Sometimes, U.S. businesses want to hire a foreign national, but the foreign national needs permission to work in the U.S. An H-1B visa is a non-immigrant visa that allows businesses in the U.S. to employ foreign workers. The first step in determining whether the foreign national is eligible to request legal permission to work in the U.S. is to evaluate whether the individual meets the requirements to obtain a temporary work permit or H-1B visa.
The U.S. business must hire the foreign national to work in a specific occupation, which requires theoretical or technical expertise. These occupations include engineering, mathematics, architecture, science and medicine. Under the H-1B visa, a company can employ a foreign worker for up to six years.
The H-1B visa application process is relatively quick. Under premium processing, the U.S. Citizenship & Immigration Services must take action within 15 days of receiving an application. An additional fee is required for Premium Processing Service. Even without premium processing, the H-1B process is easier and faster than applying for a Green Card. As a result, the option is popular among companies that wish to quickly bring in workers for an assignment. However, individuals do not apply for the visa themselves — the employer must petition for the employee’s entry or change of status. Employers in the U.S. can begin applying six months before the actual start date of the visa.
One caveat for U.S. Businesses to remember is that Immigration laws limit the number of visas to 85,000 for each government fiscal year. This number includes 65,000 new visas issued for overseas workers in professional or specialty occupation positions and 20,000 additional visas available for those with an advanced degree from an academic institution in the U.S. Once the visa cap has been reached, the U.S. Citizenship and Immigration Services will stop accepting petitions for the specific fiscal year. Due to the large number of H-1B visa applications submitted to the United States Citizenship and Immigration Services every year, it is important that applications subject to the cap be submitted on April 1 of the fiscal year for an employment start date of October 1.
Those applying to extend a current H-1B visa are not subject to the annual cap. In addition, those already on an H-1B can utilize the portability provisions of the American Competitiveness in the Twenty-First Century Act (AC21) to transition their H-1B to a different employer.
To qualify for an H-1B visa, you must have one of the following:
- A Bachelor's degree or Master’s Degree (or foreign equivalent)
- 12 years of work experience
- A mix of further education (for example, an Associate’s Degree) and six years of work experience
The H-1B visa is initially granted for up to three years; however, the duration may be extended to a maximum of six years. An employee may receive extensions of H-1B status beyond six years for an indefinite period of time in certain circumstances, if he or she is in the process of applying for employment-based permanent residence (commonly referred to as the "green card"). One of the main advantages of the H-1B visa is that it is a “dual intent” visa, meaning that you may apply for a Green Card when you are in the U.S. under H-1B status, which can extend your stay in the country.
Can I bring my family with me to the U.S. under an H-1B visa?
H-1B visa holders may bring their spouses and/or children into the U.S. as dependents. The dependents may remain in the country as long as the H-1B holder remains; however, these dependents may not work. On the other hand, dependents may attend school, open a bank account and obtain a driver's license.
Ultimately, the H-1B visa is the most popular work visa in the U.S. You should speak with a qualified immigration law attorney if you have questions about how to legally enter the U.S. or how to legally work in the U.S.