H-1B Visa Overview

Unique Aspects of the H-1B Visa Category:

The H-1B visa program permits the temporary employment of foreign workers in specialty occupations such as scientists, engineers, or computer programmers. A specialty occupation requires the theoretical and practical application of a body of specialized knowledge and a bachelor’s degree or the equivalent in the specific specialty. Congress has established an annual fiscal year limitation of 65,000 on the number of available H-1B visas, commonly referred to as the “H-1B cap.”

The upcoming H-1B visa fiscal year (2009) runs from October 1, 2008 through September 30, 2009. USCIS will accept H-1B visa petitions for FY 2009 starting on April 1, 2008. Last year the cap was reached on April 1, 2007 - the very first day of filing! USCIS received over 100,000 petitions and had to implement a lottery system just to determine which H-1B petitions would be considered for a visa number. There is no indication that this year will be any different. In order to beat the rush for the limited number of H-1B visa numbers available, prospective H-1B workers should start preparing a packet of the basic documents needed for an initial H-1B petition.

Basic Steps for H-1B Visa:

There are three basic steps for an employer and prospective H-1B visa worker to take in order to obtain an H-1B visa.

1. Step One : An employer must file a Labor Condition Application (“LCA”), Form ETA 9035E, with the Department of Labor. By completing and signing the LCA, the employer agrees to several attestations regarding an employer’s responsibilities, including the wages, working conditions, and benefits to be provided to the H-1B visa worker.
2. Step Two : Once the DOL has certified the LCA, the employer must file the LCA along with a petition for H-1B status, Form I-129 with supplemental forms, with the U.S. Citizenship and Immigration Services (USCIS) center. 
3. Step Three : If the applicant is outside the U.S., when the petition is approved, a copy of the approved petition is sent to the U.S. consulate designated on the petition and the H-1B visa worker can then go to the consulate to make his or her nonimmigrant visa application.

*Note: Canadian citizens are visa exempt and do not need to obtain an H-1B visa. Instead, Canadian citizens may be admitted into the U.S. by presenting the original I-797 approval notice for their H-1B petition.

Documentation Generally Needed for I-129 Petition:

The following list provides the general documentation required in support of an I-129 petition (Step Two) for H-1B status. Individuals considering filing a petition for H-1B status should start collecting these materials.

• Valid passport.

• If already in the U.S.: Copies of current Visa, I-797, I-94, I-20, or EAD.

• Copies of Degrees, Transcripts, Diplomas, Certificates.

• Academic/Experience Evaluation – if necessary, e.g., to prove possession of the equivalent of a U.S. bachelor’s degree.

Maximum Period of Stay for H-1B Visa Workers:

• Pursuant to INA § 214 (g) (4) the period of authorized stay for H-1B nonimmigrants may not exceed 6 years.

• An H-1B worker who has spent six years in the United States either as an H-1B worker or as an L-1 worker, may not seek extension, change status or be readmitted to the United States under H-1B or L-1 status unless the worker has resided and been physically present outside the United States, except for brief trips for business or pleasure, for the immediate prior year.

• Exceptions for green card applicants.

Additional Materials:

• Compare NAFTA TN Status vs. H-1B Visa Status.

 References:

• DOL - Employment Law Guide H-1B Workers