H-1B Visas for Non-Immigrant Foreign Nationals in Specialty Occupations
Non-Immigrant Work Visas for Architects, Engineers, Physicians and Teachers
An H-1B visa is a non-immigrant work visa that allows individuals to work temporarily in certain specialty occupations. Put another way, the H-1B visa is used to sponsor a foreign national worker to come to the United States if the foreign national will work in a professional capacity. Specialized fields may include architecture, mathematics, sciences, medicine, and more.
The H-1B applicant must have a bachelor’s degree, or the equivalent, linked to the employment position for which the applicant is seeking the visa. The applicant must have a job offer from a U.S. employer in his or her profession at a prevailing wage. The employer is responsible for obtaining Labor Certification from the U.S. Department of Labor (DOL) before filing the H-1B petition with the United States Citizenship and Immigration Services (USCIS).
There is a yearly cap for H-1B visas, which is 85,000 per year as of 2022. Within this group, 20,000 visas are reserved for individuals who have obtained master’s degrees or higher from U.S. colleges or universities. In 2019, USCIS altered the order in which it selects H-1B petitions to increase the probability that a petition in this sub-group will be selected. A foreign national can live and work in the U.S. on an H-1B visa for a three-year period with the possibility to extend it for another three years. Thus, a U.S. company can employ a foreign worker for up to six years. A foreign national can pursue multiple H-1B petitions sponsored by different employers, but the same employer cannot sponsor multiple petitions for the same foreign national. Companies that are related or affiliated can sponsor separate H-1B petitions for the same foreign national only if they can show that the job opportunities are truly separate.
The cap does not apply to an H-1B worker who is employed or the subject of a petition by an institution of higher education or an affiliated or related nonprofit entity, a nonprofit research organization, or a government research organization.
An H-1B holder is free to travel internationally to conduct personal or professional business. In order to re-enter the U.S. after an international trip, the H-1B holder must have a valid passport, a valid H-1B visa, and a completed I-94 form. Canadian citizens do not require an H-1B visa and should use the H-1B Approval Notice (I-797) and a passport. H-1B holders are advised to carry with them a recent letter from their employer confirming their continued employment in addition to the other documents.
Work Authorization for Spouses
Certain H-4 dependent spouses may be eligible to file an application for employment authorization (Form I-765) so long as their H-1B spouse has already begun the process of seeking employment-based lawful permanent residence status.
If an H-1B visa holder is working at any third-party work sites that are not controlled by their sponsor, the sponsor must provide USCIS with contracts and itineraries for that worker. USCIS will want to verify that the sponsor will maintain an employer-employee relationship with the foreign national throughout the duration of their H-1B status. They must have a specific and non-speculative qualifying assignment in a specialty occupation that will benefit the sponsor.
If the H-1B foreign worker is fired or quits his or her job, the worker must apply for and be granted a change of status to another type of visa, find another employer to sponsor him or her, or leave the United States. If the foreign national changes their employer during the term of the H-1B visa, they do not need to apply for a new visa. The visa stamp on their passport remains valid until its expiration date, even though it contains the name of the initial employer.
H-1B visa holders can bring a spouse and unmarried children under age 21 to live in the U.S. under the H-4 category as dependents. They may stay in the U.S. only for as long as the H-1B holder’s visa is valid. Thus, when an H-1B expires, the H-4 dependents must leave the U.S. as well. Dependents are not allowed to work in the U.S., although they may attend school, get a driver’s license, and open a bank account. An extension of the H-1B visa holder's status does not automatically extend the status of an H-4 dependent. They will need to file for an extension independently.
While the H-1B is not an immigrant visa, it is recognized as a dual intent visa, meaning an H-1B visa holder may apply for a green card while in the U.S. on an H-1B visa. If an H-1B holder wants to remain in the U.S. beyond six years, he or she can apply for permanent residency in the U.S. to receive a green card. If an individual does not get permanent residency before the expiration of his or her H-1B visa, he or she must live outside of the U.S. for at least one year prior to reapplying for another H visa.
If you are interested in finding out which employers hire H-1B workers, you can explore the H-1B Employer Data Hub. USCIS started this site in 2019 to improve transparency regarding the H-1B program. The hub provides a search engine in which you can enter the name, location, or NAICS code of the employer. Visitors can find out about the types of petitions that the employer has filed with USCIS and the outcomes of the petitions. The petitions are classified as either initial petitions for foreign nationals who had not previously held an H-1B visa, or continuing petitions for foreign nationals who already held H-1B status, either for that employer or for another employer. However, the information may not be completely accurate. The website does not contain any personal information about the H-1B visa holders.
Immigration authorities conduct random, unannounced checks of work sites at which H-1B visa holders are employed to detect any fraud or abuse of immigration rules. These checks have become increasingly frequent in recent years. USCIS focuses on targeting employers rather than foreign nationals in these checks, especially employers that rely heavily on H-1B workers compared to American workers and employers that sponsor H-1B visa holders at third-party work sites.