In order for an individual to come to the United States lawfully as a nonimmigrant to work temporarily in the United States, the prospective employer must generally file a nonimmigrant petition on their behalf with USCIS. The requirements for both employer and possible employee differ from visa classification to visa classification.
The H1-B Employment Visa applies to temporary nonimmigrant workers who wish to perform services:
To be considered a specialty occupation, a job must meet one of the following criteria:
In order to qualify to accept a job offer in a specialty occupation, the individual must meet one of the following criteria:
The H1-B Visa application includes action from both parties – the employer and prospective employee.
Firstly, the employer must submit a Labor Condition Application to the Department of Labor. However, this step is only required for a specialty occupation or a fashion model petition.
Secondly, the employer must also submit a completed I-129 petition to the United States Citizen and Immigration Services. The form consists of:
For example, the individual supplements for H1-B may include a copy of the employee’s Bachelor’s degree or foreign equivalent to prove qualification.
Once the I-129 is approved, the prospective employee may apply with the U.S. Department of State at a U.S. embassy or consulate for an H1-B Visa, if a visa is required. They must apply to the U.S Customs and Border Protection for admission into the U.S. under the correct classification.
The employer must receive an approval notice of the I-129 before the prospective employee can take these steps.
Within the H1-B program, there is a Fiscal Year general cap that the majority of applications are subjected to and a Master’s Exemption cap that only 20,000 applications can be filed under. The congressionally mandated general cap is 65,000 applications.
Which applications fall under which cap is decided based on the H1-B Data Collection and Filing Fee Exemption Supplement that is required to submit.
Applications for the next fiscal year are accepted starting in April of the prior year. However, due to the caps and the high volume of applications in such a short period of time, this filing period only lasts about a week or less and it essentially becomes a “lottery.” USCIS will use a computer-generated random selection process to determine which 65,000 applications will be chosen for consideration and subjected to the general cap and which 20,000 will be chosen for consideration and subjected to the Master’s Exemption cap.
As an H1-B nonimmigrant, the individual may be admitted for a period of up to three years. The time period may be extended, but generally cannot go beyond a total of six years, though some exceptions do apply.
The most time an H1-B visa status can be extended is three years, therefore a foreign national can only remain in the U.S., on an H1-B visa, for a maximum of six years, generally.
To be exempt from this time cap:
To apply for an extension or a renewal, the employer must provide:
And the employee must provide:
If the employee is terminated before the end of their period of authorized stay, the employer will be liable for the reasonable costs of their return transportation. However, if the employee voluntarily resigns from the specialty occupation position, then the employer is not responsible for the costs of your return transportation.
Contact the Service Center that approved the petition in writing if you believe that your employer has not complied with this requirement.