The H-1B Work Visa

The U.S. H1B visa is a non-immigrant visa. It allows a U.S. company to employ a foreign individual for up to six years. Applying for a non-immigration visa is generally quicker than applying for a U.S. Green Card, so staff required on long-term assignment in the U.S. are often initially brought in using a non-immigrant visa such as the H1B visa.

Individuals can not apply for an H1B visa; the employer must petition for entry of the employee. H1B visas are subject to annual numerical limits.

U.S. employers may begin applying for the H-1B visa six months before the actual start date of the visa. Since the beginning of the FY 2009 is October 1, 2008, employers can apply as soon as April 1, 2008 for the FY 2009 cap, but the beneficiary cannot start work until October 1st.

The H1B visa is designed to be used for staff in “speciality occupations”, that is those occupations which require a high degree of specialized knowledge. Generally at least the equivalent of a job-relevant four-year U.S. Bachelor’s degree is required. (This requirement can usually be met by having a three-year degree and three years of relevant post-graduate experience.) However, professionals such as lawyers, doctors, accountants, and others must be licensed to practice in the state of intended employment – e.g., a lawyer must generally have passed the relevant state bar exam.

Non-graduates may be employed on an H1B visa if they can claim to be ‘graduate equivalent’ by virtue of twelve or more years of experience in the occupation.

Positions that are not “speciality occupations”, or for which the candidate lacks the qualifications or experience for an H1B visa, may be filled using an H-2B visa.

New H1B legislation requires certain employers — called ‘H1B dependent employers’ — to advertise positions in the U.S.A. before petitioning to employ H1B workers for those positions. H1B dependent employers are defined as those having more than 15% of their employees in H1B status (for firms with over fifty employees – small firms are allowed a higher percentage of H1B employees before becoming ‘dependent’). In addition all new H1B petitions and 1st extensions of H1B’s now require a fee (in addition to the usual filing fees) of $1,000, which will be used to fund training programs for resident U.S. workers.

The initial visa may be granted for up to three years. It may then be extended, in the first instance for up to two further years, and eventually for one further year, to a maximum of six years. Those wishing to remain in the US for more than six years may, while still in the U.S. on an H1B visa, apply for permanent residence (the “green card”). If such employees do not gain permanent residence, when the six year period runs out they must live outside the U.S. for at least one year before an application is made for them to enter on an H or an L visa.

Once a company has brought an employee to the U.S. on an H1B visa, if the company dismisses that employee before the expiry of the visa, the company is liable for any reasonable costs that the employee incurs in moving back home. This provision covers only dismissal; it is not relevant when an employee chooses to resign.

More About the H-1B Visa

The H-1B visa is a US work visa for professionals from all over the world. The United States Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security, is the agency that is responsible for all visas, including the H-1B.

An H-1B visa is typically valid for up to six (6) years, and entitles your spouse (husband/wife) and children to accompany you and live in America.  It is a ‘dual intent’ visa that allows you to apply for a Green Card (Legal Permanent Residency).  After six (6) years, if no other arrangements are made, the H-1B expires and the person must leave the U.S. for one (1) year before re-entry.

It is the ‘primary’ and most sought after USA work visa (permit) for foreign nationals who want to live and work in the USA in a specialty occupation.  H-1B Visa ‘specialty occupations’ are typically considered to be:  Computing & IT, Telecoms, HealthCare, Finance & Accounting, Teaching, Legal, PR, Marketing & Advertising, Sales, Management and Engineering.

The fiscal year begins on  October 1 and ends with September 30.  The U.S. government allows applications to be accepted beginning on 01 April, six months prior to the beginning of the fiscal year.  A person who is granted an H-1B visa may begin working legally under the visa on the first day of the fiscal year.  Once granted a visa, a person may begin working on or after October 1.

  • For Fiscal Year 2006, the quota for H-1B visa petitions was reached by 11 August 2005.
  • For Fiscal Year 2007, the quota for H-1B visa petitions was reached on 26 May 2006.
  • For Fiscal Year 2008, the quota for H-1B visa petitions was reached on 02 April 2007.

Of the ‘standard’ H-1B visas available, several thousand are set aside and reserved for nationals of several countries by special treaty with the United States.

If the employee you wish to employ holds a Master’s Degree or higher from a United States university, he or she is eligible for one of 20,000 H-1B visas set aside for people with that level of education. These are the Advance Degree Exception category, and are in addition to the 65,000 ‘standard’ H-1B’s.