H-1B Specialty Occupations Visa

The H-1B visa is a non-immigrant visa that allows U.S. employers to recruit aliens to come to the United States to work in “specialty occupations.”  The term “specialty occupation” is defined by law as meaning an occupation requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor.  An H-1B visa holder will also need to hold a Bachelor’s Degree or equivalent qualification. The H-1B visa is time-limited; the period of time for which an alien may remain in the United States on an H-1B visa is normally limited to a maximum of 6 years (though there are certain exceptional situations in which H-1B visastatus can be extended beyond this six year maximum).  An H-1B visa holder’s spouse and children under the age of 21 are eligible for H-4 visas and can remain in the U.S. so long as the H-1B visa holder’s status remains valid.  If the spouse and children wish to work in the U.S., then they will need to obtain their own U.S. work visas.

The alien worker may not file an H-1B visa application for himself or herself; rather the prospective U.S. employer must file the H-1B visa application for the worker.  In this situation, the employer is considered to be the “petitioner” while the worker is considered the “beneficiary” of the application. The “petitioner” (that is the employer) must also file with the U.S. Department of Labor a document called a “Labor Condition Application ”certifying that the petitioner will pay the alien worker the prevailing wage for the work and that the employment of the foreign worker will not adversely affect the working conditions of similarly employed U.S. workers.

One important feature of the H-1B visa is that, while most types of non-immigrant visas become invalid if the alien applies for a green card, the H-1B does not.  This means that an alien who is in the United States on an H-1B visa can apply for a U.S. green card without affecting his or her H-1B status.