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H-1B Professional Temporary Workers

H-1B Visa Application Instructions
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& Inadmissibility Grounds
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What Happens When the H-1B Employment Ends?

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H-1B EMPLOYEE TERMINATION ADVISORY CHECKLIST*

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1. What is an H-1B?
H-1B classification is for individuals in professional or "specialty occupations" that are offered temporary employment in the United States.
A.
Job Offer Requirements
The job offered must be in a "specialty occupation," i.e., bachelor's (or higher) degree or its equivalent is normally the minimum requirement for the particular position in question (some exceptions). (Examples: Software Engineer, Accountant, Teacher, Attorney, President/CEO, etc.)
B.
Temporary Worker Requirements
The beneficiary must be qualified to work in the specialty occupation offered, i.e., must possess a U.S. bachelor's degree or the equivalent or higher in the field required by the specialty occupation (some exceptions).

2.
What are the procedures for getting an H-1B?
The H-1B process is a two-step process.
 
A.
The Labor Condition Application ("LCA")
The employer must file an LCA with the U.S. Department of Labor attesting that certain conditions have been met, including the requirement that the prevailing market wage be offered. The employer also must maintain specific types of documentation of the conditions attested to in the LCA.
 
B.
The H-1B Petition
The H-1B petition by the employer must be filed with:
1. Evidence that the job offered is in a "specialty occupation";
2. Evidence of the alien beneficiary's qualifications; and
3. The approved LCA and proof that the offered salary is "market" or above.
3. How long does an H-1B take, and how long is it valid?
It takes the U.S. Department of Labor one week or less to approve an LCA. Then, it generally takes the CIS California Regional Service Center approximately 6 to 18 weeks to adjudicate an H-1B petition. (Premium processing is available with an additional fee of $1000, through which INS guarantees adjudication within 15 days.)

An initial H-1B petition may be approved for a temporary period of up to three years, and an extension of up to three years is available. The total amount of time an alien may spend in H-1B status in the United States is six years, with one year extensions available for certain workers whose permanent residence processing ("labor certification") has been pending for over 1 year
.

4. Is there a "waiting list" for H-1B status?
There is currently an annual limit of 65,000 H-1B workers per year. There is currently more demand for H-1B visas than there are available visas, so the CIS runs out of visa numbers early in the year. Not everyone is counted against the quota (U.S. masters degree holders are allotted 20,000 visas per year, there are separate visa numbers for certain countries such as Singapore, Chile, Australia, and persons who work for certain institutions of higher education or non-profits are exempt from the quota). Futhermore, persons previously allotted H-1B visas may be able to reuse their old number.


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