H1B Visa: Temporary Worker Visa

What is a H-1B Visa?

H-1B Visas allows U.S. employers to employ foreign specialty professionals. Specialty occupations are defined as requiring highly specialized knowledge in the fields of STEM, social sciences, liberal arts, business, accounting, law, and other fields. The H1B Visa is under the Immigration and Nationality Act which has protections in place for American workers and the nonimmigrant temporary workers. Employers who hire foreign individuals with H-1B Visas must prove that they are paying equal wages compared to a U.S. worker in a similar position with similar experience. This is put in place to ensure U.S. employers are not undercutting foreign workers and not displacing equally qualified U.S. workers with less expensive labor.

Note: Foreign nationals seeking employment cannot apply for the H-1B Visa themselves, they must find a sponsor employer who will petition for the visa on their behalf.

Lottery for H-1B Visas

Every fiscal year, there are a limited number of H-1B Visas available for foreign workers. That number is set to 65,000 overall visas and another 20,000 for foreign nationals with master’s degrees or higher from U.S. schools. Cap-exempt entities can hire foreign nationals with no limit and they include government research organizations, non-profits associated with universities, and universities. Additionally, Chile and Singapore have special trade agreements that allocate 1,400 and 5,400 H-1B1 visas respectively.

H-1B Visa Length of Stay

The typical duration that H-1B Visas grant is three years with a possible extension to six years. There are certain extensions which are listed below:

  • Individuals who have submitted a I-140 Immigrant Petition prior to their fifth year of being a H-1B Visa holder can renew their visa in one year increments until they are denied or approved for a green card
  • If an individual has already been approved for their I-140 Immigrant Petition but has not reached their priority date yet, they may renew their H-1B for an additional three years until they become a permanent resident
  • The maximum allotted stay under a H-1B Visa for work related to the U.S. Department of Defense is ten years

Transitioning from H-1B to a Green Card

Although H-1B Visas are meant for temporary nonimmigrant employment in the United States, it is recognized by the U.S. government as a dual intent visa. This means that H-1B Visa holders may apply for a green card while in the nonimmigrant status and they do not need to maintain a foreign address. Green card applications may take years to process so H-1B holders may need to reapply for extensions on their temporary employment authorization while waiting to become a permanent resident.

H-1B Application Process

Once you have been offered a full time job from an employer, your future employer must:

  • File a Labor Condition Application with the U.S. Department of Labor to show fair wages and working conditions
  • File Form I-129, Petition for a Nonimmigrant Worker to request an H-1B Visa for a foreign employee
  • Once Form I-129 has been approved, the foreign national may begin work and will require the H-1B to enter the United States. If the foreign national was already in the U.S. they still need the H-1B Visa if they want to exit the borders and return with no issues.