A maximum of 65,000 H-1B visas are issued every year. The H-1B visa is issued for up to three years but may be extended for another three years. Individuals cannot apply for an H-1B visa to allow them to work in the US. The employer must petition for entry of the employee.
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Specialty occupation is defined as an occupation, which requires:
- Theoretical and practical application of a body of highly specialized knowledge, and
- Attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry
A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor's degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.
Applying for the Visa
H-1B status requires a sponsoring U.S. employer. The employer must file a labor condition application (LCA) with the Department of Labor attesting to several items, including payment of prevailing wages for the position, and the working conditions offered. The employer must then file the certified LCA with a Form I-129 petition plus accompanying fee.
How long can an alien be in H-1B status?
Under current law, an alien can be in H-1B status for a maximum period of six years at a time. After that time an alien must remain outside the United States for one year before another H-1B petition can be approved. Certain aliens working on Defense Department projects may remain in H-1B status for 10 years. In addition, certain aliens may obtain an extension of H-1B status beyond the 6-year maximum period, when:
365 days or more have passed since the filing of any application for labor certification, Form ETA 750, that is required or used by the alien to obtain status as an EB immigrant,
365 days or more have passed since the filing of an EB immigrant petition.
How should an employer petition for H-1B visa?
- Form ETA-9035, Labor Condition Attestation, with the Regional Department of Labor office
- Form I-129, Petition for Nonimmigrant Worker, with H-Supplement and supporting documentation including the approved LCA should be filed with the USCIS Regional Service Center having jurisdiction over the city of intended employment. When it is approved, the employer or agent is sent a notice or approval Form I-797 and a copy of it is forwarded to the American Consulate
- Evidence that the alien holds the required degree
- Evidence of education and experience, which is equivalent to the required U.S. degree
- Any required license or other official permission to practice the occupation in the state of intended employment
- The alien has education, specialized training, and experience that is equivalent to training acquired by the attainment of a U.S. bachelor's or higher degree in the field
Family members of H-1B aliens are classified under H-4 category. While the H-4 aliens may undertake fulltime studies in the United States, they may not engage in employment. To work they must change their status to nonimmigrant category for which work is authorized.