The H-1B visa applies to those hired by a U.S. employer in a “specialty occupation,” meaning a position which requires a theoretical and practical application of a body of highly specialized knowledge and at least bachelor’s degree or its equivalent for entry. Examples of common specialties for H-1B visa as defined by regulations would be occupations in the fields of architecture engineering, mathematics, physical sciences, social sciences, medicine, education, business specialties, law, theology, and the arts.
To qualify for an H-1B visa, you must have at least a bachelor’s degree or its equivalent from an accredited college or university in a field of the specialty occupation offered to you. If your degree was obtained from outside of the U.S., you must show that it is the equivalent of a U.S. bachelor’s degree or higher through a credential evaluation. If you do not have the prerequisite education, you may still qualify if you can demonstrate multiple years of progressive experience in your specialty through employment verification letters. The USCIS generally accepts three years of progressive experience or specialized training in a related field to be the equivalent of one year of college level education. If a license or certification is required to fully practice in your profession, you will also need to have such license or certification, unrestricted, in order to qualify for an H-1B visa.
A U.S. employer wishing to hire a foreign national under an H-1B visa must first submit a Labor Condition Application (LCA) to the U.S. Department of Labor. The LCA ensures, among other things, that the employer will be paying the H-1B worker at least the prevailing wage, or the actual wage of other similarly employed U.S. workers. After the LCA is certified, the employer will submit a petition to the USCIS along with other supporting evidence. Because there is an annual numerical limit (“H-1B cap”) on the number of H-1B visas available, all new H-1B visa petitions must be submitted on April 1 of each year and the earliest starting date of the H-1B employment will be October 1 of that year. H-1B is a very popular visa and there are usually more petitions filed than the number of H-1B visas available, so USCIS will hold a lottery and accept petitions based on a computer-generated random selection process. Some employers are exempt from the H-1B cap, such as institutions of higher education, non-profit research organizations, and government research organizations. Cap-exempt employers may submit an H-1B petition at any time of the year.
You may receive an H-1B visa for up to 3 years with each filing. However, your total stay under an H-1B visa is limited to a maximum of 6 years. Therefore, if you had your first H-1B visa for 3 years, got an extension for another 3 years, you will have to leave the U.S. for at least 1 year before you can apply for an H-1B visa again. Certain exceptions apply if you have a labor certification or an employment-based immigrant visa petition filed on your behalf more than 1 year before you reach your 6-year limit. It is therefore very important to plan ahead if you wish to continue your employment in the U.S. beyond the maximum H-1B period of 6 years.
All H-1B visas are employer-specific, meaning you can only work for your H-1B visa petitioner. If you want to switch jobs, you will need to have your new employer file a new H-1B visa petition on your behalf. The new employment will have to satisfy the H-1B requirements, but the position does not necessarily have to be the same title or salary. You will also no longer be subject to the H-1B cap, and can file your H-1B change of employer petition at any time. You may start working for your new H-1B employer after the petition was received by USCIS instead of having to wait for the approval. If you want to accept another position with a different employer while keeping your current H-1B employment, you may also file a concurrent H-1B visa petition with multiple employers as H-1B visas can be for part-time positions as well.
If you resign or get terminated from your H-1B employment before the expiration date of your H-1B visa status, you will have up to 60 days of authorized stay (“grace period”) in the U.S. or may remain until the end of your H-1B validity period, whichever is shorter. During this grace period, you may look for new employment, change your status to another visa, or prepare for your departure, but you are not permitted to work.
Your spouse or children under the age of 21 can apply for an H-4 visa as your dependents. Employment is generally not permitted under an H-4 visa except for dependents of certain H-1B visa holders with an approved employment-based immigrant visa petition. H-4 visa holders may engage in full or part-time study in the U.S. However, if you want to engage in on-campus employment or take advantage of extra-curricular/optional practical training, you will have to change your status to an F-1 visa unless you already have work authorization from USCIS.
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