What are the requirements for the H-1B visa for foreign nationals to be able to work in the United States?

The most commonly used non-immigrant visa by US employers, the H-1B classification applies to foreign nationals who wish to be temporarily employed in a specialty occupation. The United States Citizenship and Immigration Service (USCIS) defines specialty occupation as one that requires the theoretical and practical application of a body of highly specialized knowledge, and obtaining such level of expertise would normally require the completion of a bachelor’s degree at an institution of higher education. H-1B classification is also available for fashion models of distinguished merit and ability.

For the job to qualify as a specialty occupation one or more of the following criteria must be met:

  • A bachelor’s degree or its equivalent is normally the minimum entry requirement for the job;
  • The degree requirement for the job is common to the industry;
  • The employer normally requires a degree or its equivalent for the position; or,
  • The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

For the foreign national to qualify to accept a job offer in a specialty occupation, he or she must meet one of the following criteria:

  • Has completed a U.S. bachelor’s or higher degree from an accredited college or university;
  • Holds a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree;
  • Holds an unrestricted state license, registration, or certification if the occupation requires it in the state of intended employment; or
  • Has education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree.

The H-1B visa has an annual cap of 65,000 each fiscal year. H-1B workers who are sponsored by or employed at an institution of higher education or its affiliated or related nonprofit entities or a nonprofit research organization, or a government research organization are cap–exempt, i.e. not subject to the 65,000 annual numerical cap. In addition, Congress also has allocated an additional 20,000 H-1B visas for graduates of U.S. masters programs or higher.

The U.S. employer must obtain a certification of a labor condition application (LCA) from the Department of Labor (DOL). This application includes certain attestations, a violation of which can result in fines, bars on sponsoring non-immigrant or immigrant petitions, and other sanctions to the employer.

H-1B non-immigrant may be admitted for a period of up to three years. This time period may be extended, up to a total of six years. After this time, the foreign national must remain outside the United States for one year before another H-1B petition can be approved. Certain foreign national working on Defense Department projects may remain in H-1B status for 10 years. However, with the passing of the new law in 2000, certain foreign nationals may now extend their status beyond the 6-year period in one year increments if:

  • 365 days or more have passed since the filing of any application for labor certification, Form ETA 750 or 9089, that is required or used by the alien to obtain status as an Employment-based immigrant, or
  • 365 days or more have passed since the filing of an Employment-based immigrant petition (I-140).

Foreign nationals may extend their status for three years if their I-140 immigrant visa petition has been approved and their permanent residence application is still pending because of the lack of immigrant visa availability.

Spouse and unmarried children under 21 years of age of the H-1B non-immigrant are entitled to H-4 classification. However, H-4 dependents are not authorized to work in the U.S.

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