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H1-B Temporary Specialty Worker

The H-1B visa classification allows a foreign worker to enter the U.S. temporarily for the purpose of performing services in a “specialty occupation” for a U.S. employer. The H-1B visa classification requires that (1) a foreign national be coming to the U.S. to work temporarily in a “specialty occupation”, (2) that the foreign national have the equivalent of at least a U.S. Bachelor’s degree in a field related to that occupation; and (3) that the sponsoring company pay the foreign national the prevailing wage, provide proper notice to its work force, and not be involved in a strike or lockout.

Specialty occupations can be found in a wide variety of fields, ranging from Architecture and Engineering to Medicine and Health. A “specialty occupation” is an occupation that requires a Bachelor’s degree in a specific field as a minimum requirement for entry into that occupation. For example, most Software Engineer positions require a Bachelor’s degree in Computer Science or a related field, and thus qualify for H-1B classification. Data Entry positions, however, do not normally require a Bachelor’s degree in any specific area, and thus do not qualify for H-1B.

A foreign national can hold the equivalent of a U.S. Bachelor’s degree in a related field through education here or abroad, or through a combination of education and experience. Foreign degrees must be evaluated by a professional evaluation service before the H-1B petition can be filed with the U.S. Citizenship & Immigration Service (USCIS).

H-1B status can be granted initially for up to three years, and then can be extended for another three years. The maximum amount of time a foreign national can remain in the U.S. in H-1B status is six years. Once the six year cap is reached, the foreign national must be physically outside the U.S. for one full year before he/she can return to the U.S. in H-1B or L-1 status. In limited circumstances, H1B status can be extended beyond 6 years.

The H-1B visa classification gives the foreign national permission to work only for the petitioning employer. A foreign national can change employers only after a new employer has obtained an approved H-1B petition from USCIS, however it may be possible to change employers upon the filing of no frivolous H-1B petition if the person has been issued an H-1B visa or status previously and has not worked without authorization since his or her last admission to the U.S.

Generally speaking, the average U.S. Citizenship & Immigration Service processing time for an H-1B petition is between two and four months. Congress has placed a limit on the number of “new” H-1B petitions that can be approved every fiscal year, so if an H-1B petition falls under the definition of “new” for these purposes, the H-1B processing could be substantially delayed. Cases that are subject to the annual limit are H-1B petitions filed for persons who are in the U.S. in a status other than H-1B, and H-1B petitions filed for persons who are abroad. Petitions filed to transfer an H-1B visa to a new company are not affected by this limit.

An H-1B worker’s spouse and unmarried dependent children under the age of 21 may accompany the H-1B worker in the U.S. in H-4 classification. They are not allowed to work, however, unless they change their status to a nonimmigrant classification which permits employment. H-4s are allowed to attend school.

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