The H-1B is a non-immigrant visa in the United States under the Immigration and Nationality Act (INA). These visas allow U.S. employers to temporarily employ nationals in specialty occupations. The term “specialty occupation” is defined by INA as a “professional” and almost always requires that the applicant possess a bachelor’s degree or higher. Moreover a specialty occupation is one that requires theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor.
Every fiscal year (beginning October 1st of each year) Congress sets limitations on the number of foreign nationals who can apply for H-B1 status. Currently, the number of visas for foreign nationals who possess bachelor’s degree is 65,000 per year. The law also exempts up to 20,000 applicants from the numeric limitation if the foreign national possesses a master’s degree from a U.S. university. Also excluded from the numerical limitation are foreign nationals who work at universities and non-profit research facilities.
The U.S. Citizenship Immigration Service begins to receive applications for H-B1 visas not more than six months prior to commencement of employment which is October 1st of any given year. Therefore, employers can only begin to apply for these visas as of April 1st of any given year.
There is no requirement that the employer do any type of recruitment prior to the filing of an H-B1 for a foreign national; however the employer must sign an attestation (known as the Labor Conditions Application – LCA) for the U.S. Department of Labor attesting that the wages offered are equal to wages paid by the employer to other workers with similar experience and qualifications, or alternatively, to pay the prevailing wage for the occupation in the area of intended employment, whichever is greater. By signing the LCA, the employer attests that prevailing wage rate will be paid, working conditions will not adversely affect conditions of similarly employed U.S. workers, the place of employment is not experiencing a labor dispute involving a strike or lockout, and that the foreign national will be offered benefits comparable to those offered to other workers with similar jobs.
The maximum duration of the H-1B visa is six years. H-B1 status can only be renewed after the six year period if the foreign national remains outside the United States for one year. The foreign national may extend the H-B1 status beyond the six year period in accordance to the American Competitiveness in the Twenty-First Century Act of 2000 if the employer has filed a labor certification application on behalf of the foreign national or the foreign national has filed a petition for alien worker prior to the fifth year in H-B1 status.
For more information please contact Gonzalez Law Offices, Inc and make an appointment.