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"H-1B" Work Visas

For Any Nationality

  • "Bachelor's Level" H-1B Visas

     

    The basic requirement for the H-1B category is that the foreign national must have a U.S. bachelor’s degree or its equivalent, and the position for which the foreign national is being sponsored must typically require a bachelor’s degree as a minimum requirement.  This equivalency can be established through a combination of education and experience.

     

    There is currently a “cap” of 65,000 bachelors-level H-1B visas that may be issued every governmental fiscal year (from October 1-September 30).  All foreign nationals who wish to work on an H-1B visa must obtain approval from the U.S. Citizenship and Immigration Services (USCIS) prior to entering the United States on H-1B status, or prior to converting their current non-immigrant status to H-1B status.

     

    A bachelors-level H-1B non-immigrant visa is valid for a three-year period.  A foreign national may remain on H-1B status for a total of six years. However, an H-1B visa may be extended beyond this six-year period if the foreign national has a green card application in process for at least one year.  This means that every H-1B worker should have a green card application filed before the end of their fifth year on H-1B status if they wish to remain in the United States longer than their six-year H-1B period.

  • "Master's Exempt" H-1B Visas

     

    In addition to the 65,000 bachelors-level H-1B visas discussed above, Congress has allowed for an additional 20,000 H-1B visas to be available for foreign nationals who earn a master’s degree or higher from a U.S. college or university.  Like the bachelors-level H-1B visa, all foreign nationals who wish to work on a masters-exempt H-1B visa must obtain approval from the USCIS prior to entering the United States on H-1B status, or prior to converting their current non-immigrant status to H-1B status.

     

    A masters-exempt H-1B non-immigrant visa is valid for a three-year period.  A foreign national may remain on H-1B status for a total of six years. However, an H-1B visa may be extended beyond this six-year period if the foreign national has a green card application in process for at least one year.  This means that every H-1B worker should have a green card application filed before the end of their fifth year on H-1B status if they wish to remain in the United States longer than their six-year H-1B period.

  • "Cap Exempt" H-1B Visas

     

    In addition to the above categories of H-1B visas, there are a number of instances in which a foreign national may obtain an H-1B visa irrespective of whether the 65,000 bachelors-level H-1B cap or 20,000 masters-exempt cap have been reached. These include:

     

    • Foreign nationals who work for higher education institutions, non-profit organizations or government research organizations;
    • Foreign nationals who are transferring between an institute of higher education, a non-profit organization or government research organization; and
    • Foreign nationals who are J-1 non-immigrants who have a 2-year foreign residency waiver.
  • The "H-1B" Application Process

     

    The H-1B visa process is the same process as for many different work visas available in the U.S.  Because of this, we have created a separate Non-Immigrant Visa Application Process page for all of these visa categories.

  • Unemployed H-1B Workers

     

    Thompson Immigration receives many inquiries from H-1B workers who had been laid of  from their job and do not know if they must leave the U.S. immediately or whether they can take the time to find another job.

  • Family Members

     

    The spouse and unmarried minor children of an H-1B worker may be admitted as an H-4 dependent non-immigrant.  Family members must make a separate filing with the USCIS and/or U.S. Embassy or consulate in order to obtain H-4 status.

     

    Spouses of an H-1B visa holder may not work in the United States unless they have an independent basis for employment authorization.  However, all family members may attend school.

     

    IMPORTANT: Oftentimes an H-1B worker transfers his or her H-1B status to a new employer.  This can  result in the H-1B worker having a different immigration status validity period than his or her family.  You must be sure that everyone in a family have the same immigration validity periods. Otherwise, you could find that an H-1B worker may remain in the United States, but his or her family have been out of status for a significant period of time and may not be allowed to remain in the United States.

 

The H-1B non-immigrant visa category is the most commonly used non-immigrant work visa utilized by U.S. companies to employ foreign nationals.  Anyone from any country may apply for an H-1B visa.  However, due to the limited number of H-1B visas made available under U.S. law, the number of H-1B visas run out every year.  This is the so-called "H-1B cap".  Because of this, it can be difficult for individuals seeking new H-1B visas to actually obtain one.  However, once you are on an H-1B visa, you may remain on it for six years or longer, if you have a green card in process.

 

If you cannot obtain an H-1B  visa due to the H-1B cap, another rarely-used avenue is to obtain an "E-2 non-immigrant investor" visa.  Under this category, anyone from approximately 77 countries may start their own company and then sponsor themselves for a work visa.  Under this scenario, a "would-be" H-1B employee can still work for their "would-be" H-1B employer.  The difference is that the foreign national is hired as an independent contractor (through the foreign national's E-2 company) instead of as an employee.

 

 

© 2017 Thompson Immigration Law Associates