U.S. Business Immigration & Legal Services
H-1B Specialty Occupation Visa Overview
Individuals with a strong educational and professional background may apply for an H-1B visa. To qualify, the foreign national typically needs a bachelor’s degree (or higher), and an offer of employment from a US Company for a position which requires a degree. Applicants for H-1B status should be aware that there is an annual quota for this visa, with application accepted on April 1st each fiscal year.
Labor Condition Application Requirement
Prior to filing a petition with USCIS on behalf of an alien in a specialty occupation, the petitioner (US Employer) must have obtained a certification from the Department of Labor that it has filed a labor certification application (LCA). Among other requirements, the LCA verifies that the US employer will meet or exceed prevailing wage requirements for the position based on where the employee will be working.
Maximum Validity Period
Generally, the maximum period of stay in H-1B status is six years. This is subject to the exceptions below.
- Most H-1B visa holders can work in the United States for a maximum of 6 years, but an alien participating in a Department of Defense (DOD) research and development or co-production project may work for a maximum of ten years. Note that petition validity is usually for a maximum of 3 and 5 years, respectively. Also, other factors, such as time recapture and American Competitiveness Act in the 21st Century extensions can affect the validity period of an H-1B petition.
- Under the American Competitiveness in the 21st Century Act (“AC21,” Public Law 106-313), USCIS may approve an H-1B petition for an unlimited number of times beyond the 6 year minimum in 3-year increments if the alien is the beneficiary of an approved employment-based immigrant petition, but is unable to adjust status due to unavailability of immigrant visa numbers. Additionally, USCIS may approve the H-1B petition in 1-year increments beyond the initial 6-year maximum if 365 days or more have elapsed since the filing of a labor certification or an immigrant petition on the alien’s behalf. The AC21 law also provides the ability for certain H-1B nonimmigrants to switch employers upon the new employer’s filing of an H-1B petition on the alien’s behalf, without waiting for the petition to be approved. See AC21 section 105.
- The limitation on total period of stay does not apply to H-1B, H-2B, and H-3 aliens who did not reside continually in the United States and whose employment in the United States is seasonal or intermittent, or is for an aggregate of six months or less per year, nor to aliens who reside abroad and regularly commute to the United States to engage in part-time employment. These exceptions may not apply (and thus the maximum period of stay may still be enforced) if the principal alien’s dependents have been living continuously in the United States in H-4 status. The alien must provide clear and convincing proof (e.g., evidence such as arrival and departure records, copies of tax returns, records of employment abroad) that he or she qualifies for these exceptions.
