The H1B Specialty Occupation Work Visa- FAQ
Prepared by Attorney Rabia Chaudry, Esq. of the Washington D.C. bar only.
§ What is an H1B visa?
The H1B visa is a nonimmigrant visa that gives permission to foreign nationals to enter and work in the United States in professional jobs that are “specialty occupations”. An employer with a tax ID/FEIN number who demonstrates the need for a specialty occupation position to be filled by a foreign national can sponsor such an individual for up to 6 years.
§ What is a specialty occupation?
A specialty occupation is one which "requires theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation AND which requires the attainment of a bachelor's degree or higher in a specific specialty as a minimum for entry into the occupation in the United States." Architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations, amongst others.
§ Who qualifies for an H1B?
To qualify for the H1B visa, an individual must provide evidence that they have the capability to work in a specialty occupation, that they are seeking to enter the US temporarily, that they are seeking to enter to work in a professional capacity, that they have a minimum of a bachelor’s degree or equivalent experience.
§ What are the limitations to having an H1B visa?
There are two general limitations: first, the H1B is a temporary work visa and does not lead to permanent residence. The H1B is granted in three-year increments; after six years an individual may apply for one year extensions if a labor certification application has been pending for more than 365 days. Otherwise, the individual must leave the US for one year before becoming eligible to return with a new H1B visa. The second limitation is the annual quota cap of 65,000 new visas: the quota has proven insufficient to meet the demands of the US labor market and in recent years the H1B quota has been reached on the first day of filing on April 1 of each year.
§ Can I bring my spouse and children to the US while I am on an H1B?
Yes, the spouse and children of an H1B visa holder may enter the US on an H4 visa. The H4 visa will remain valid as long as the H1B visa is valid. Although individuals on H4 visas may not work, they may enroll and study in schools and universities.
§ How is an H1B visa filed?
The employer first files a Labor Condition Application with the Department of Labor and then files a petition for a nonimmigrant worker for the employee along with the appropriate supplements and supporting documentation. The visa process takes between three to six months, although a $1000 fee can be paid for premium processing, which speeds up the process to fifteen days. The earliest a new H1B visa holder can begin work is October 1 of the year that the visa was applied for.
§ What is the difference between H1B status and the H1B visa?
An H1B visa is a nonimmigrant visa issued by a US consulate overseas that allows the foreign national to enter the US. Once in the US, the H1B worker is in H1B status, which is a legal status allowing them to work and reside in the US.
§ If I am already in the US can I change my status to H1B?
Yes, as long as an applicant is in a valid nonimmigrant status (F1, B1, etc) at the time of application, they may apply for a change of status to an H1B. An individual who is no longer in valid status (ie, expired visitor visa) may not apply to change status within the United States; they must leave the US and can receive an H1B visa at the consulate in their native country given that the employer has filed an H1B petition for that person.
§ What happens if I am fired or laid off?
An H1B worker who has been fired, laid off, or resigns from his or her employment loses H1B status immediately. He or she cannot change status because he or she is no longer in any valid status.
§ Can an H1B be transferred to another employer?
As long as an H1B worker is in valid status, another employer may file a new petition for that individual and the H1B visa may get transferred to the new employer. The H1B worker must demonstrate that there has been no gap in employment by providing recent paystubs to prove that he or she was not fired or laid off from the previous H1B employer.
§ Are there any travel restrictions for an H1B worker?
No, neither an H1B or H4 visa holder is restricted from traveling freely with a valid visa stamp in their passport.
§ Can I apply for permanent residence while on an H1B visa?
Yes, the H1B is a dual-intent visa (both immigrant and nonimmigrant intent) and allows the H1B worker to adjust their status (become a permanent resident) while remaining in the US if an immigrant petition is filed and approved for that person.
§ What documents are needed when applying for an H1B visa?
The required documents are the following: Labor Condition Application, employment offer letter, employer tax returns, certified evaluation of foreign national’s degrees, copies of foreign national’s degrees, experience letters, resume, copies of professional licenses, foreign national’s tax returns/paystubs/W-2 forms (if already in the US), marriage and birth certificates if applying for H4 dependants, and passport size photographs for all applicants.
Disclaimer: -Rabia Anwar Chaudry, Esq. is the founding attorney of Chaudry Immigration Law, LLC. This information is general in nature and not legal advice. Please consult an experienced immigration attorney regarding your specific circumstances.