H-1B Frequently Asked Questions (FAQs)
H-1B Visa is one of the most widely preferred non-immigrant visa
classifications for employment in the United States
What is an H-1B Visa Program?
Who is eligible for the status of H-1B worker?
How long can a foreign worker be in H-1 status?
What is a "Nonfrivolous" H1B petition?
Define H-4 dependant visa?
Who is considered the employer of an H1B foreign
worker?
How to apply for H-1B visa?
What are the responsibilities of an employer?
What is an H-1B Visa Program?
The H-1B is an important non-immigrant U.S. work visa or work permit used by an
alien who will be employed temporarily in a specialized area. This program
enables highly skilled personnel and students, from all over the world (or
already in the USA), to lawfully live and work in America. (For more information
visit H-1B Visa page)
Who is eligible for the status of H-1B worker?
The H-1B worker is an alien who is coming temporarily (in non-immigrant status)
to the U.S. to perform services in a "specialty occupations". He/she is qualified
through the appropriate degree, or through a combination of education and
experience equivalent to that degree. The worker may be entering the USA for the
first time or may already be working in the United States, but pursuing a change
of employer.
The alien must prove that he/she is qualified for the specialty occupation and
the particular job offered. One method is to obtain a credentials evaluation of
their foreign university degree, to show that it is equivalent to that of a U.S.
degree.
If the worker is already in the U.S. and has a valid non-immigrant visa, the
H-1B visa can be extended and revalidated in the U.S. If, on the other hand, the
worker is not in legal status, or resides overseas, the H-1B visa must be
obtained through a U.S. Consulate.
How long can a foreign worker be in H-1 status?
Since the H1B work visa is considered a temporary visa, there is a limitation on
periods of stay. The initial periods of stay may be approved for up to 3 years
(usually depending on the occupation and/or the needs of the employer). And
after that, another 3 years are available, by filing forms for extension of
stay. After the 6 years, the worker must spend one year outside the USA before
being approved for another H-1B visa. However, many workers take steps to attain
permanent residence status (“Green Card”) during their initial 6-year stay.
The H-1B visa’s six year time limit is not valid to people with I-140
employment-based immigration applications or
adjustment of status applications
if a year or more has passed since the
labor certification was filed or the
I-140 was filed. H-1B visas may be extended pursuant to this section in one year
increments until the final decision comes in on the green card application.
What is a "Nonfrivolous" H1B petition?
In most instances applicants must either hold Post Completion Practical Training
(a type of work authorization) or wait for the
H-1B visa application to be
approved before beginning to work. However, recently a change in the law allows
an H-1B worker to change employers as soon as his/her new employer submits a "nonfrivolous"
H-1B petition to the USCIS. In order to be qualified for this provision, the
applicant must have been lawfully admitted to the U.S., the new petition must
have been filed before the expiration of the period of stay authorized by the
Attorney General and the individual must not have been employed without
authorization in the United States before the filing of such petition.
Define H-4 dependant visa?
Dependents of H-1B work visa holders may be granted an H-4 visa. But, they are
not permitted to work in the U.S.
Who is considered the employer of an H1B foreign worker?
To qualify as a U.S. employer, the employer should have a U.S. taxpayer
identification number.
How to apply for H-1B visa?
H-1B work visa requires a sponsoring U.S. employer. When recruiting a foreign
worker, the employer must file a Labor Condition Application (LCA) with the US
Department of Labor (DOL). This application requires the employer to explain the
position and the salary, as well as attest to facts relating to the wage,
working conditions, labor conditions and the giving of notice of the employment.
Once the LCA is approved, the employer then submits an I-129 Petition for
non-immigrant worker, along with related forms and supporting documents, to the
USCIS. This form documents that the job requires the services of a person in a
"specialty occupation", and provides documentation that the worker does, indeed,
qualify for the job offered.
What are the responsibilities of an employer?
The employer of an H1B worker has certain duties. Once the I-129 is approved,
the employer must keep wage and hour records, as well as information concerning
working conditions for similarly situated employees. Upon request, these records
must be provided to DOL'' Wage and Hour Division.'' If the appropriate records
are not maintained, the employer could be liable for substantial penalties and
fines, even lose the right to apply for immigrant
visas and non-immigrant visas for up
to one year.
If the H-1B worker is terminated any time during the approved period of stay on
the I-129, the employer is responsible for paying for the worker's return
transportation to his/her foreign residence.
