Nonimmigrant Visas

NONIMMIGRANT VISAS

H-1B - persons in specialty occupations which require the theoretical and practical application of a body of highly specialized knowledge requiring completion of a specific course of higher education. This classification requires a labor attestation issued by the U.S. Secretary of Labor; it also applies to government-to-government research and development, or co-production projects administered by the U.S. Department of Defense;

What is an H-1B?

The H-1B 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.

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.

Is there an annual limit on the number of H-1B aliens?

Yes. The current law caps the annual issuance of new H-1B visas at 65,000. Congress has provided that the first 20,000 H-1B petitions filed on behalf of aliens who have earned a U.S. master’s degree or higher are exempt from the fiscal year cap. H-1B petitions filed on behalf of beneficiaries who will work at institutions of higher education or related or affiliated nonprofit entities, or at nonprofit research organizations or governmental research organizations are exempt from the fiscal year cap. Additionally, petitions filed on behalf of beneficiaries who will be performing work or services solely in Guam and/or the Commonwealth of the Northern Marianas Islands (CNMI) are exempt from the cap until Dec. 31, 2014.

Generally, H-1B beneficiaries seeking to extend status and/or add employers are not subject to the cap.An employer may file for a prospective alien employee’s H-1B visa as early as April 1 prior to the Fiscal Year (which begins on the following October 1) on which he hopes to employ an alien in H-1B status. If the H-1B petition it will be valid as of October 1 or the date of approval, whichever is later. In 2009, the 65,000 H-1B cap was reached after the start of the Fiscal Year on December 21, 2009.

How can I apply for an H-1B visa?

H-1B status requires that a U.S. employer sponsor the prospective alien employee. The employer must file a labor condition application (LCA) with the Department of Labor attesting to several items, including payment of the prevailing wage for the offered position, and the working conditions offered. The employer must then file the certified LCA with a Form I-129 Petition plus an accompanying fee of $320 and an additional fee of $750 or $1,500. Based on the USCIS petition approval, the alien may apply for the H-1B visa, admission, or a change of nonimmigrant status.

What if I was an F-1 Student and my status expires prior to October 1 of the upcoming H-1B Fiscal Year?

Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire, and up to the start of their approved H-1B employment period. This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between F-1 and H-1B status that might otherwise occur if F-1 status was not extended for qualifying students.

H-1B petitions must be timely filed on behalf of an eligible F-1 student. Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period, while the student's authorized duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion OPT, and the 60-day departure preparation period, commonly known as the “grace period”).

Once a timely filing has been made, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed. If the student’s H-1B petition is selected and approved the student’s extension will continue through September 30th unless the petition is denied, withdrawn, or revoked. If the student’s H-1B petition is not selected and approved, the student will have the standard 60-day grace period from the date of the rejection notice or their program or OPT end date, whichever is later, to prepare for and depart the United States.

Students are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.

How long can an alien be in H-1B status?

Under current law, an alien can be in H-1B status for a maximum period of six years at a time. After that time an alien must remain outside the United States for one year before another H-1B petition can be approved. Certain aliens working on Defense Department projects may remain in H-1B status for 10 years. In addition, certain aliens may obtain an extension of H-1B status beyond the 6-year maximum period, when:

365 days or more have passed since the filing of any application for labor certification, Form ETA 750, that is required or used by the alien to obtain status as an EB immigrant, or
365 days or more have passed since the filing of an EB immigrant petition.

Who can an H-1B alien work for?

H-1B aliens may only work for the petitioning U.S. employer and only in the H-1B activities described in the petition. The petitioning U.S. employer may place the H-1B worker on the worksite of another employer if all applicable rules (e.g., Department of Labor rules) are followed. H-1B aliens may work for more than one U.S. employer, but must have a Form I-129 petition approved by each employer.

What if the alien’s circumstances change?

As long as the alien continues to provide H-1B services for a U.S. employer, most changes will not mean that an alien is out of status. An alien may change H-1B employers without affecting his or her status, but the new H-1B employer must file a new Form I-129 petition for the alien before he or she begins working for the new employer. The merger or sale of an H-1B 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.

Must an H-1B alien be working at all times?

As long as the employer/employee relationship exists, an H-1B alien is still in status. An H-1B alien may work in full or part-time employment and remain in status. An H-1B alien may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status.

Can an H-1B alien travel outside the U.S.?

Yes. An H-1B visa allows an alien holding that status to reenter the U.S. during the validity period of the visa and approved petition.

H-2A - temporary or seasonal agricultural workers;

H-2B - temporary or seasonal nonagricultural workers. It requires a temporary labor certification issued by the U.S. Secretary of Labor;

H-3 - trainees other than medical or academic. It also applies to practical training in education of handicapped children;

L - intracompany transferees who, within the three preceding years, have been employed abroad continuously for one year, and who will be employed by a branch, parent, affiliate, or subsidiary of that same employer in the u.s. in a managerial, executive, or specialized knowledge capacity;

O-1 - persons who have extraordinary ability in sciences, arts, education, business, athletics or extraordinary achievements in the motion picture and television field; persons accompanying an O-1 alien to assist in an artistic or athletic performance for a specific event or performance

P-1 - individual or team athletes, or members of an entertainment group that are internationally recognized;

P-2 - artists or entertainers who will perform under a reciprocal exchange program;

P-3 - artists or entertainers who perform under a program that is culturally unique (same as P-1);

Q-1 - participants in an international cultural exchange program for the purpose of providing practical training, employment, and the sharing of the history, culture, and traditions of the alien's home country.

Other Non-Immigrant Visas

B-1/B-2 - visas for temporary visitors

F, M, J, H-3 - visas for academic and vocational students, trainees, exchange visitors

A, G, C-2/C-3 - diplomatic and international or aliens in transit.

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