H-1B Specialty Occupations Visa
This category of visas is for those individuals in a "specialty occupation" which requires theoretical and practical application of highly specialized knowledge and attainment of at least a bachelor's degree (or the foreign equivalent) and state licensure (if required to practice). A combination of education, training and work experience may substitute for a bachelor's degree. In that case, 3 years of specialized training/experience may substitute for one year of college study. The US employer files an I-129 Form with the Immigration Service. If the foreigner is not yet in the US, then the overseas consulate is notified and the employee obtains the visa there. If the foreigner is already in the US, then s/he obtains the visa the next time they leave the country.
For an employer's petition (sponsorship) of an H-1B nonimmigrant to be approved, the specialty worker's credentials must match the needs of the position to be filled within the specialty occupation.
There is an annual limit (cap) on the number of H-1B petitions available to US employers. In October 2003, the cap reverts to 65,000 visas. The annual cap does not apply to H-1B petitions for extension of stay or change of employer. Also certain employers are exempt from the cap such as colleges and universities and non-profit research organizations.
This visa provides an excellent opportunity for both the U.S. employer and the foreign worker. The visa is temporary in nature. Approved H-1B non-immigrants are initially admitted for a maximum of three years. Extensions of stay may be approved up to a maximum allowable period of 6 years. If the employee wants to be re-admitted as a specialty worker after working in the US for 6 years, the foreign worker must remain outside the US for at least one year and the employer must file a new petition. The work authorization for H-1B foreign specialty workers is employer-specific, i.e. it is limited to an approved employer. However, the annual cap does not affect H-1B beneficiaries who change employers and they may begin to work for the new employer immediately following the filing of the petition. They do not have to wait for the approval.
Employers must notify the Immigration Service when H-1B employees are terminated so that the Immigration Service may recapture those H-1B numbers for use by beneficiaries of other H-1B petitions for new employment. Also, employers must pay for return transportation costs for employees who are terminated prior to the end of the approved period of employment.
Dependents and spouses for the H-1B employee may also come to the US in the H-4 classification, but employment is not allowed in this category.