San Jose Immigration Attorney
There are seven types of H visas: H-1B (specialty occupation), H-1B1 (specialty
occupations from Singapore and Chile), H-1C (Professional Nurses Working
in Health Professional Shortage Areas [HPSAs]), H-2A (temporary agricultural
workers), H-2B (skilled/unskilled workers where US Citizens and Permanent
Residents are not available), H-3 (trainees) and H-4 (accompanying family
members of H visa holders).
The most popular of the H-Visa category is the H-1B visa. The H-1B visa
is a non-immigrant visa that permits U.S. employers to employ foreign
nationals in specialty occupations for a temporary period. A person may
hold H-1B status for a maximum of six years, and may be eligible for extensions
beyond the six-year limit under certain circumstances.
One of the most desirable features of an H-1B visa is its recognition of
“dual intent”, meaning that an H-1B worker can apply for a
Green Card and become a permanent resident, without having his or her
H-1B visa denied or revoked. H-1B visas are advantageous to foreign nationals
seeking specialized employment in the U.S. H-1B visas are numerically
limited for each fiscal year. This limitation is set by Congress and commonly
referred to as the H-1B Cap. For example, the statutory cap for fiscal
year 2016 is 65,000 and 20,000 for aliens who obtained a U.S. master’s
degree or higher.
Generally speaking, alien workers cannot petition for H-1B status for themselves.
The sponsoring U.S. employer must file the H-1B petition for the foreign
worker. Therefore, the U.S. employer is usually referred to as the petitioner
while the foreign worker is referred to as the beneficiary. To qualify
for an H-1B visa, the sponsoring employer and potential employee must
meet specific requirements set forth by USCIS and Department of Labor.
These requirements include:
- The employee must be employed in a specialty occupation, meaning that the
employee must have earned a U.S. Bachelor’s or higher degree or
equivalent (the minimum requirement for entry into an H-1B occupation
is a four (4) year U.S. Bachelor’s degree or equivalent in a specific field);
- There must be an employer and employee relationship between the sponsoring
U.S. employer and the foreign worker; and
- A Labor Condition Application certified by the Department of Labor must
be submitted with the H-1B petition.
The spouse and minor children of an H-1B employee can stay in the U.S.
on H-4 status. In general, they can study but are not permitted to work.
However, under new regulations that went into effect on May 26, 2015, certain
spouses on H-4 status are now eligible to apply for employment authorization
in the U.S. Those eligible to apply for employment authorization are H-4
dependent spouses of H-1B visa holders who:
- Have an approved Form I-140; or
- Have been granted an extension of stay beyond the six-year H-1B visa limit
under AC21 (American Competitiveness in the Twenty-First Century Act of
2000) based on a pending PERM Labor Certification application or a Form
I-140 application that has been pending adjudication for more than 365 days.
Our firm has a team of experienced attorneys and staff members who can
help you navigate the complex U.S. immigration laws. Our highly specialized
professionals will ensure that your H-1B petition process goes smoothly
and will maximize the chance of your H-1B approval. Please
contact us for more information or
schedule a legal consultation.
H-1B Visa Related Issues
- INS Directive on H-1B Travel and AC-21. Michael A. Pearson Memo dated Jan. 29, 2001
- USCIS Letter Addresses Travel After Change of Status
- DOL Finds Filing & Attorney Fees must be paid by Employer
- Amended H-1B not required if LCA certified prior to move
- USCIS Memo re Mexican TN visas & Singapore/Chile free trade H-1B and E visas
- List of Customs & Border Protection Bureau (CBP) deferred inspection
offices for correction of erroneous Form I-94s
- Changes to the NSEERS Program, DHS Issues a Fact Sheet, FAQs and Press Release.
- Department of State (DOS) to end revalidation of visas in the US
- Electronic I-9 Signature and Storage Bill signed into Law
- USCIS Memo re H-1B & L-1 Visa holders being allowed to recapture all
the days spent outside the US.
- USCIS Memo dated 12/05/2006 on periods of H & L admissions.
- USCIS Memo (09/23/2005) re Interim Guidance Regarding the Impact of the
Department of Labor's (DOL) PERM Rule on Determining Labor Certification
Validity, Priority Dates for Employment-Based Form I-140 Petitions, Duplicate
Labor Certification Requests and Requests for Extension of H-1B Status
Beyond the 6th Year.
- USCIS Memo regarding AC 21 issues.
- USCIS Memo rescinds Memo on denials without RFE and new instructions on RFEs.
- USCIS announces Direct Filing Instructions for Form I-129F, I-131, I-140,
I-360, I-485, I-765 and I-907.
- USCIS Memo (06/18/2001) Travel After Filing a Request for a Change of Nonimmigrant Status
- Update Regarding New PIMS System