The H-1B visa is a temporary visa that permits U.S. businesses to employ skilled foreign workers for several years at a time. Generally, — but not always –, the H-1B is issued in two initial increments of 3 years each. Under “AC21”, there are some specific provisions to obtain extensions beyond the 6th year.
The H-1B Visa permits part-time or full-time employment. But, the visa is employer specific. This means that the worker only receives permission to work for the sponsoring business.
The employer can be a new or small business. The foreign worker is permitted to own all or part of the business. However, the government may require additional forms of evidence in these cases, such as proof that the business can afford to pay the foreign worker and proof that the business really needs the services of a worker with a degree.
The U.S. government limits the number of new H-1B Visas per year. The current limit is 65,000 per year. This number does not include H-1B Extensions or Amendments of H-1B Status, only new H-1B Visas are counted.
Certain new H-1B Visas are not counted toward the 65,000 total. These include jobs connected with universities and research facilities, workers with a Master’s or higher degrees from a U.S. university, and some other special cases. When the government has used all of the 65,000 new H-1B Visas for the year, new H-1B visas are not available until the start of the government’s next fiscal year (which begins in October).
The spouse and children under 21 may live in the U.S. with the foreign worker. They will have H-4 status. With H-4 status, attending any school (public or private) is permitted. However, no employment is permitted.
Duration of H-1B Visa: The foreigner worker will initially receive permission to live and work in the U.S. for three years. It is possible to extend the visa for another three years for a total of six years in the U.S. in H-1B Status.
The job must meet one of the following criteria to qualify as a specialty occupation:
- Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position
- The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree
- The employer normally requires a degree or its equivalent for the position
- The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
For you to qualify to accept a job offer in a specialty occupation you must meet one of the following criteria:
- Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university
- Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation
- Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment
- Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
After six years in H-1B status, the foreign worker has the following options: (under “AC21”)
- He or she may extend H-1B Status in one year increments, if a labor certification or green card application has been pending at least one year.
- He or she may extend H-1B Status beyond six years, if foreign worker has an approved green card, but is not yet eligible to receive it due to per-country limitations (applies to citizens of India, Mexico, and the Philippines).
- He or she may leave the U.S. for at least one year. After a year, the foreign worker would be eligible for six more years in H-1B Status.
- He or she could possibly switch to another temporary visa category.
To see which occupations might qualify as a recognized “specialty occupation”, the best place to research is the U.S. government’s own job catalog, known as “O*NET“
IMPORTANT! PLEASE NOTE: Having a qualifying U.S. employer-sponsor (Petitioner), and appearing to satisfy the job requirements for the prospective U.S. position of employment, and the worker (Beneficiary) appearing to possess the required educational requirements or work experience, DOES NOT GUARANTEE that USCIS will (1) accept, (2) receive, (3) adjudicate, or (4) approve the petition!
On an annual basis, generally after April 1 of any given year, USCIS accepts many more petitions during the submission period than what can statutorily be approved, and therefore must conduct a random computerized lottery to select petitions for adjudication. In order to participate in the H-1B submission lottery, you have to first conduct the mandatory H-1B pre-registration. (generally between March and April). Once the registration is accepted, USCIS will conduct a lottery, and notify those selected, to prepare and submit the H-1B petition (generally by end of June).
On some occasions, USCIS may conduct a SECOND lottery selection period of successful registrants, who were not selected during the initial lottery. Those then have the opportunity to prepare and select their H-1B petition for adjudication.
Your petition could be rejected and NOT selected for further processing, even if your case was perfectly approvable! In this case, USCIS will return all filing fees submitted, because the case was not accepted for processing.
Last Revision: 2024-10-4