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GENERAL

The H-1B visa permits non-U.S. citizens to enter the United States and work within what is referred to as a “specialty occupation.”  To obtain H-1B status, a U.S. employer must submit a petition on your behalf.  This article provides an overview of the basic requirements, rules, and procedures pertaining to the H-1B application process.

REQUIREMENTS

Speciality Occupation: Four-Year Bachelor’s Degree or its Equivalent

To be eligible for an H-1B visa, you must have been offered a position with a U.S. employer to work within a speciality occupation.  A job may qualify as specialty occupation if it requires at least a four-year bachelor’s degree or its equivalent in work and/or educational experience.  Professions that will most certainly fall within the definition of a speciality occupation include, but are not limited to, lawyers, accountants, physicians, architects, social workers, professors, artists, pharmacists, chiropractors, librarians, computer system analysts, chemists, and engineers.

If it is unclear as to whether or not your field of work will be considered a speciality occupation, you must assess the requirements of the offered position.  If the position you have been offered requires at least a four-year bachelor’s degree, there is a good chance it will qualify as a speciality occupation.  If the job you have been offered does not require at least a four-year bachelor’s degree, then the position must require the equivalent of a four-year bachelors’ degree in work and/or educational experience.  The USCIS usually wants to see three years of specialized training and/or work experience for every year of university that you would have attended.  Therefore, if you have not attended any university, you must have at 12 years of professional experience in the field in which you will be working while in the United States.

Four-Year Bachelor’s Degree and/or Equivalent Experience Must be Necessary for the Performance of the Job

It is very important to note that the offered position must require a professional with at least a four-year bachelor’s degree or its equivalent.  Thus, if someone with less experience would be qualified for the offered job, the position is not a speciality occupation.  For example, an employer may seek to hire a bookkeeper with at least a four-year bachelor’s degree or 12 years of experience in the industry.  However, the offered position would not be considered a speciality occupation because, even though the employer prefers to hire someone with extensive experience, such credentials are not necessary for the performance of the offered job.

H-1B CAP

Numerical Limit

Under federal regulations, the number of workers who can be issued an H-1B visa in a given fiscal year is capped at 65,000.  Of the 65,000 H-1Bs issued each fiscal year, 20,000 are reserved for people with a minimum Master’s level degree from a U.S, academic institution.  Also, 1,400 H-1Bs are reserved for Chilean nationals and 5,400 for Singapore nationals.

Those Exempt from the Cap

You are not subject to the numerical limits if you will be working for an institution of higher education (or a non-profit affiliated with one), a non-profit research organization, or a government research organization (“cap-exempt institution”).  Also, individuals who obtained an H-1B from a non cap-exempt institution are not subject to the cap when seeking to renew their status or change employers.

DURATION

Your H-1B status can be granted for a maximum duration of three years.  Prior to its expiration, you may extend your H-1B for an additional three years, which means you may stay in the U.S. for a total of 6 years as an H-1B non-immigrant.  However, under certain circumstances, you can extend your stay in the U.S. beyond six years as an H-1B visa-holder.

DUAL INTENT

H-1B status is a dual intent category, which means, unlike with most other non-immigrant visas, you may apply for a Green Card while in the U.S. as an H-1B visa-holder without compromising your non-immigrant status.

SPOUSE AND CHILDREN

Your spouse and unmarried children under age 21 can enter and reside in the U.S. with you by applying for an H-4 visa.  To be eligible for an H-4 visa, your spouse and/or children will need to provide bona fide proof of their familial relationship to you.  H-4 visas authorize qualified family members to reside in the U.S. with you, and to study in the U.S. as well, but not work.

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