H1B VISA - FREQUENTLY ASKED QUESTIONS

Question: What is an H1B Visa?

The H1B visa is a nonimmigrant classification used by an alien who will be employed temporarily in a specialty occupation or as a fashion model of distinguished merit and ability.

Question: What is a specialty occupation?

A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.

Question: Who can a foreign citizen work for under H1B visa?

Under the H1B visa, the foreign citizen worker may only work for the petitioning US employer and only in the H1B activities described in the petition. The petitioning US employer may place the H1B worker on the worksite of another employer, if all applicable Department of Labor rules are followed. H1B workers may work for more than one US employer, but must have an H1B petition approved for each employer.

Question: Is there an annual limit on the number of H1B visas?

Yes. The current law limits to 65,000 quota numbers of foreign citizens who may be issued an H1B visa or otherwise provided H1B status. Generally, the quota does not apply to H1B workers filing for extension of status or change of employer. However, H1B aliens employed by quota exempt organizations, such as institutions of higher education or nonprofit research organizations, may become subject to the H1B quota, if they apply to change jobs to a non-exempt employer. Under the H1B Visa Reform Act of 2004, Congress allocated 20,000 additional H1B numbers for aliens who have received a Master's or higher degree from a US College or University.

Question: Must an H1B alien be working at all times?

As long as the employer / employee relationship exists, an H1B worker is still in valid visa status. An H1B alien may work in full or part-time employment and remain in valid visa status. An H1B alien may also be on vacation, sick / maternity / paternity leave, on strike, or otherwise inactive without affecting his or her status.

Question: What if the foreign citizen's circumstances change?

As long as the foreign citizen continues to provide H1B services for a US employer, most changes will not mean that an alien is out of status. An alien may change H1B employers without affecting status (H1B transfer), but the new H1B employer must file a new H1B petition for the alien before he or she begins working for the new employer. The merger or sale of an H1B employer’s business will not affect the alien’s status in many instances. However, if the change means that the alien is working in a capacity other than the specialty occupation for which they petitioned, it is a status violation.

Question: Can an H1B worker intend to immigrate permanently to the US?

Yes. An H1B alien can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident status without affecting H1B status. This is known as "dual intent" and has been recognized in the immigration law since passage of the Immigration Act of 1990. During the time that the application for LPR status is pending, an alien may travel on his or her H1B visa rather than obtaining advance parole or requesting other advance permission from Immigration to return to the US.

Question: Can an H1B alien travel outside the US?

Yes. An H1B visa allows an alien holding that status to reenter the US during the validity period of the visa and approved petition.

Question: How does one apply for an H1B visa?

H1B status requires a sponsoring US employer. The employer must file a labor condition application (LCA) with the Department of Labor attesting to several items, including payment of prevailing wages for the position, and the working conditions offered. The employer must then file the certified LCA with an H1B petition. Based on the USCIS petition approval, the alien may apply for the H1B visa, admission, or a change of nonimmigrant status.

Question: How long an a foreign citizen be in H1B status?

Under current law, a foreign citizen can be in H1B status for a maximum period of six years at a time. After that time the foreign citizen must remain outside the United States for one year before another H1B petition can be approved. Certain aliens working on Defense Department projects may remain in H1B status for 10 years. In addition, certain aliens may obtain an H1B extension beyond the 6-year maximum period, when:

a. 365 days or more have passed since the filing of any application for labor certification that is required or used by the alien to obtain status as an Employment-based immigrant, or

b. 365 days or more have passed since the filing of an Employment-based immigrant petition.

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