The H1-B Visa Explained by Misiti Global, PLLC

Dec. 21, 2011 - PRLog -- The H-1B visa is dedicated to foreign nationals who have an employer in the United States willing to sponsor the foreign national. The H-1B visa also allows the sponsored employee to bring their immediate family members (spouse and children) to the United States under the H4 visa category.  Only certain employers are able to apply for H-1B sponsorship of foreign national employees, including for-profit and non-academic-institution employers. Additionally, the sponsoring business must employ the foreign worker in “specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers” according to U.S. Citizenship and Immigration Services.  A foreign national must have a bachelor or equivalent degree to be considered for H-1B sponsorship.  The employer must regularly employ workers with similar academic backgrounds to that of the foreign worker’s and the degree requirement must be common to the industry.  The H-1B sponsor and applicant must show that the duties of the employment require the degree achieved by the foreign worker.  
   An H-1B visa normally lasts for three years of duration but can be extended for a total of six years.  If the foreign national has not obtained permanent residency status after those six years then s/he must leave the country for a period of one year before s/he is allowed to re-apply for an H-1B visa.  Limited exceptions apply to this: if the H-1B visa holder has submitted an I-140 immigrant petition or labor certification prior to their fifth year anniversary of having the H-1B, they can renew the H-1B in one or three year increments until a decision on the applicant’s I-140 is granted; or if the I-140 has already been approved but the applicant cannot secure his/her green card due to his/her priority date not being current, a three-year extension of the foreign national’s H-1B visa may be available.  However these are two specific circumstances and the H-1B visa is generally viewed as a three-year visa with a maximum of six year stay with extension.
The H-1B is given to a limited number of foreign nationals each year.  65,000 H-1B visas are allotted each fiscal year; 2012, the most recent fiscal year, began on October 1, 2011 and continues through September 30, 2012.  However, this 65,000-cap does not apply to select individuals with more advanced degrees who plan to work for qualifying organizations.  Despite the fiscal year beginning on October 1, 2011, employers have been able to apply for H-1B sponsorship since April 1, 2011, six months prior to the official beginning of the fiscal year.  H-1B visas are often applied for beginning as early as the first day because of the desirability of the visa.  The cap during the 2011 Fiscal Year was not reach until January 26, 2011, but in the 2009 Fiscal Year the cap was met on April 1, 2008, the first day on which H-1B petitions were available.  

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