The H-1B Specialty Occupation Worker visa is a temporary 3-year visa, permitting a qualified worker to enter and engage in employment in the United States. The H-1B visa is subject to an annual cap of 65,000. An additional 20,000 H1B visas are allocated to alien workers who obtained their master's degree in the U.S.

In recent years, the demand for H-1B visas has exceeded the quota available, leading to a historical and unprecedented exhaustion of H-1B numbers. Currently, the H-1B cap for the upcoming fiscal year remains open, although this will not last for very long. Because the volume of H-1B cases filed may exceed the quota at any time, employers are well advised to file their H-1B visa petitions for prospective employees on April 1, 2010, or shortly thereafter.

All H-1B petitions require a Labor Condition Application (LCA) from the U.S. Department of Labor (DOL), which determines the prevailing wage. Because of delays in LCA approvals, advance planning for H-1B filings is required. Instead of being able to obtain a certified LCA instantly under the previous matrix, employers now need to wait a week or more for a certification to be issued. Uncertified LCAs may be used under very limited conditions. In addition, further delay may occur and add to the seven-day processing time when resubmission becomes necessary, which is not uncommon. Employers and alien beneficiaries are advised to plan accordingly to ensure that they are on track for the earliest filing possible.

Reeves and Associates Business Solutions Attorneys often answer the following questions in regards to the H-1B classification:

1. What are the minimum qualifications for an H-1B visa?

H-1B visas are only issued to foreign nationals employed in a “specialty occupation” or as a fashion model of distinguished merit and ability. The regulations define “specialty occupation” as an occupation that requires theoretical and practical application of a body of specialized knowledge and attainment of a bachelor’s degree or higher in the specific specialty as a minimum qualification for entry into the U.S. Examples of H-1B occupations include teachers, physical therapists, accountants, computer programmers, and engineers.

2. When can an H-1B be filed?

Under the immigration regulations, the earliest date that an employer can file an H-1B petition for the next fiscal year’s cap is April 1, for an October 1 employment start date. As a result, foreign nationals in other nonimmigrant status such as B1/B2, F-1, L1, etc. who are the beneficiaries of approved H-1B petitions with an October 1 employment start date, but whose periods of authorized stay expire before October 1, are required to leave the United States, apply for an H-1B visa at a consular post abroad (usually in their home country) and then seek readmission to the U.S. in H-1B status.

3. How does one apply for an H-1B visa?

A foreign national physically present in the United States in other nonimmigrant visa status may apply for change of status to H-1B as long as s/he has not violated their current status. When the foreign national is abroad, a U.S. employer needs to file an H-1B petition with USCIS with a request to notify an American consulate where the beneficiary resides of the approval of the petition. The alien beneficiary may then apply for an H-1B visa and seek admission to the U.S.

4.  What is the maximum duration for H-1B visas?

An H-1B is typically issued for three years, with a one-time extension of another three years. H-1B holders who wish to continue working in the U.S. after 6 years must remain outside of the U.S. for one year before applying for another H-1B visa. H-1B holders may renew their H-1B status over the 6-year limitation in one or three-year increments in certain cases where they have initiated the permanent residency application process. In addition, H-1B workers are allowed to add back or “recapture” the time they spent outside the U.S. during the validity of their H-1B status (on vacation for example).

5. Can an H-1B visa holder work for companies other than the petitioning employer?

An H-1B status holder can only work for the petitioning employer in the position specified on the H-1B petition. Working for any other employer is considered a violation of lawful immigration status.

If the foreign worker wishes to change employers, the new employer must file a new H-1B petition for the alien worker prior to the expiration of the current H-1B and prior to the termination of the current employment. The alien worker may begin working as soon as the new employer files the H-1B change of employer petition with the USCIS and does not need to wait for the petition to be approved.

An H-1B worker may be employed by different employers concurrently as long as each employer has an approved H-1B petition on behalf of the H-1B worker.

6. Are there any wage requirements for H-1B visa holders?

In order to maintain the H-1B status, the beneficiary must receive the “required wage”, defined as the greater of the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment at the place of employment or the prevailing wage for the occupation in the areas of employment.

7. What if the H-1B worker is terminated prior to the H-1B expiration?

The alien worker’s H-1B status ends upon termination of the H-1B position. In such cases, the foreign worker is no longer in valid status and must leave the U.S. unless s/he can obtain status in the U.S. in another way. An alien worker who has notice that s/he may be terminated should immediately consider whether other qualifying H-1B employment is available, and whether a change of employer filing is permissible.