The H-1B is a temporary employment-based visa for foreign professionals working in specialty occupations. A specialty occupation generally requires the theoretical and practical application of highly specialized knowledge and a bachelor’s degree or higher in a directly related specialty, or its equivalent. H-1B workers are commonly employed in fields such as technology, engineering, finance, healthcare, architecture, education, and other professional occupations.
The H-1B process is employer-sponsored. A foreign professional generally cannot file an H-1B petition independently. Instead, a qualifying U.S. employer files the petition on the worker’s behalf and must demonstrate that there is a legitimate employer-employee relationship and a qualifying position available to the beneficiary.
Many new H-1B cases are subject to an annual numerical limit. Because demand frequently exceeds the number of visas available, USCIS uses an electronic registration and selection process for many cap-subject petitions. Selection in the H-1B registration process does not guarantee approval. The employer must still file a complete petition establishing that both the position and the foreign worker satisfy H-1B requirements.
Certain employers and positions may be exempt from the annual H-1B cap. Depending on the circumstances, this can include qualifying institutions of higher education, certain nonprofit organizations affiliated with educational institutions, and certain nonprofit or governmental research organizations. Cap-exempt employment can provide an important alternative for professionals who are not selected in the regular H-1B process.
Before filing an H-1B petition, the employer generally must obtain a certified Labor Condition Application from the U.S. Department of Labor. Through this process, the employer makes specific attestations regarding wages and working conditions. The required wage must generally meet or exceed the applicable wage standards for the position and geographic area.
H-1B status is generally granted for a limited period and may be extended when the worker remains eligible. Changes in employment can also require additional immigration action. A change of employer, significant change in job duties, relocation to a different worksite, or other material change may require a new or amended H-1B petition depending on the circumstances.
An H-1B visa can also form part of a longer-term immigration strategy. Some H-1B professionals later pursue permanent residence through an employment-based green card process. Because H-1B status permits certain forms of dual intent, an employee may be able to pursue permanent residence while continuing to maintain valid H-1B status.
H-1B cases can become more complicated when there are questions about the employee’s education, maintenance of status, previous employment, job classification, employer operations, or the relationship between the degree and the offered position. Rebecca Black Law, P.A. helps employers and professionals evaluate these issues and prepare H-1B petitions with a focus on compliance, documentation, and long-term immigration planning.