The H-1B is a non-immigrant visa in the United States under the Immigration & Nationality Act, section 101(a)(15)(H). It allows U.S. employers to employ foreign guest workers in specialty occupations. Employers can hire an H1B even if qualified Americans are available.

The regulations define a “specialty occupation” as requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, law, accounting, business specialties, theology, and the arts, and requiring the attainment of a bachelor’s degree or its equivalent as a minimum. Likewise, the foreign worker must possess at least a bachelor’s degree or its equivalent and state licensure, if required to practice in that field. H-1B work-authorization is strictly limited to employment by the sponsoring employer – except that many H-1B work for bodyshops who then place them with third party employers.

Duration of Stay
The duration of stay is 3 years, extendible to 6. An exception to maximum length of stay applies in certain circumstances: (i) 1 year extensions if a labor certification application has been filed and is pending for at least 365 days; and (ii) 3 year extensions if an I-140 has been approved.

Congressional Yearly Numerical Cap
The current law limits to 65,000 the number of aliens who may be issued a visa or otherwise provided H-1B status. (The numerical limitation was temporarily raised to 195,000 in FY2001, FY2002 and FY2003.) In addition, excluded from the ceiling are all H-1B non-immigrants who work for universities and nonprofit research facilities. Free Trade Agreements allow a carve out from the numerical limit of 1,400 for Chilean nationals and 5,400 for Singapore nationals. Laws also exempt up to 20,000 foreign nationals holding a master’s or higher degree from U.S. universities from the cap on H-1B visas.

Visa renewals do not count towards the annual limits. Transfers among employers only count when changing jobs from an employer exempt from the limits (academia or research) to one that is not exempt.

Q: What is the Premium Processing program? A: With an additional payment of $1000 (in addition to the $185 filing fee for typical cases), one can require the Premium Processing Services, which guarantees 15-calendar day processing of H1-B visa application. Comparing to the regular a few months of waiting, Premium Processing Services significantly saves time for employers and H1-B visa applicants.

Q: What are the steps required to file an H-1B petition? A: Five steps are needed to complete an H-1B petition:
Obtain a job offer from an employer located in the U.S;
Obtain the prevailing wage for your position from the Department of Labor;
File a Labor Condition Application and obtain approval from the Department of Labor;
Complete USCIS’ H-1B forms, and include an employer’s petition letter;
Submit a completed and signed H-1B petition package to the USCIS.

Q: What does my employer need to do? A: Your employer needs to do two things: First, your employer needs to provide us with information necessary to file an H-1B petition. Secondly, your employer needs to sign the documents that we have prepared.

Q: How long does it take to obtain Labor Condition Application approval from the Labor Department? A: We can obtain the certified Labor Condition Application normally the same day. The certified form will then submit to your employer for verification and signature with all other documents.

Q: I am in H-1B status now, and I would like to change jobs. How long does it take to obtain a new H-1B based on a new employer? A: If you would like to change jobs, your new prospective employer must file a new H-1B application and pay all applicable fees, similar to the initial H-1B petition filed by your current employer. It generally takes between two to three months to obtain approval of an H-1B petition submitted by a new employer. However, you may begin working for your new employer as soon as the new H-1B petition is filed with USCIS under the new H-1B laws.

Q: When may I legally begin to work for a new employer? A: As soon as your new H-1B petition is filed with the USCIS, provided you have an H-1B petition with another employer at the time of filing (i.e., you are in H-1B status when you filed your new H-1B petition).

Q: I am in H-1B status now but have been laid off by my employer. How long is the grace period that allows me to keep legal status? A: Officially, there is no grace period. But in practice, USCIS has allowed a 60 days “grace period” before you must file a change of status during this time.ÿ

Q: I am in H-1B status now. If I am laid off, what must I do if I want to remain in the U.S.? A: You need to convert to another non-immigrant status, such as an F-1, F-2, or H-4 status within the grace period.ÿ As long as you file your change of status application in time, you will be allowed to remain in the U.S. while your case is pending.