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H-1B Visa

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:

  1. 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);
  2. There must be an employer and employee relationship between the sponsoring U.S. employer and the foreign worker; and
  3. 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

USCIS Memoranda

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