The H-1B visa is an option for employers such as U.S. companies and research institutions who desire to hire foreign national employees in a specialty occupation, who possess skills that are acquired through advanced level education and/or specialized training.
The H-1B visa program is the primary method for bringing in professional level foreign employees to the U.S. The H-1B visa enables U.S. employers to hire foreign workers in a position that qualifies as a “specialty occupation”. A specialty occupation is defined as a job that requires at least a bachelor’s degree or an acceptable foreign equivalent to perform the job duties.
H-1B visas are usually issued for a period up to three years and a maximum of six years. Other advantages of the H-1B program include allowing the U.S. employer to request a period of less than three years, employ an employee on a part-time basis and to work for more than one U.S. employer simultaneously.
During the validity period of the H-1B visa, the employee can also apply for permanent residency. This is called “Dual Intent” and is a privilege some other U.S. visas do not enjoy. An H-1B visa holder can assert his or her intentions to become a permanent resident without losing their non-immigrant status.
The number of H-1B visas issued each year is subject to a numerical cap that is determined by the U.S. Congress. The current cap is set at 65,000 visas per fiscal year and 20,000 visas per fiscal year for individuals with a U.S. master’s degree. H-1B applications that are approved for each fiscal year receive an employment start date of October 1st (the first day of the fiscal year). The earliest an application can be filed with the U.S. Citizenship & Immigration Service (USCIS) is six months prior to the employment start date (April 1). Employers must keep these timelines in mind when hiring foreign nationals and when applying for visas.
However, there are exceptions to the current cap. Employers who fall into one or more of the following categories are eligible to apply for H-1B visas anytime throughout the year:
- Institutions of higher education as defined in the Higher Education Act;
- Nonprofit organization entity or an affiliate of an institution of higher education as defined by the Higher Education Act;
- Nonprofit research organization or a government research organization;
Submission of the Application
H-1B applications are filed with the Service Center which has jurisdiction over the area where the alien will be employed. Processing times vary greatly depending on the Service Center and range from 5-8 months.
The USCIS offers the option of filing the application via “Premium Processing”. For an additional $1,225 filing fee, USCIS guarantees that they will make a decision on the application within 15 days.
The H-1B employee’s family may also be permitted to live in the U.S. in H4 status, during the period that the H-1B visa is in effect.