The U.S. government issues the H-1B visa to aliens who work temporarily in the United States in a specialty occupation. Such specialty occupations include architecture, mathematics, education, theology, law, and other fields that require specialized knowledge. Other specialty occupations are engineering, physical and social sciences, medicine and health, accounting and other business specialties, as well as fashion modeling in some cases. An alien with an H-1B visa must prove that he or she is qualified for the specialty occupation position, which generally requires a degree or a combination of education and experience.
The H-1B visa is limited to a maximum period of six years, a three-year initial issuance and a three-year extension. In general, after the six year period, an alien must remain away from the U.S. for one year prior to filing another H-1B visa petition. However, some aliens involved in projects for the U.S. Defense Department may obtain a ten-year H-1B visa. The U.S. limits the number of H-1B visas issued each year.
Aliens who seek the H-1B visa must have a sponsoring U.S. employer. The employer must possess a U.S. taxpayer identification number. The employer must file paperwork, which includes a labor condition application and Form I-129 petition, and pay fee on behalf of the alien seeking such a visa. The labor condition application includes information about prevailing wages for the position and the available working conditions. During the period that an H-1B worker is employed, the employer must comply with regulations and reporting set by the government.
An alien with an H-1B visa may work either part or full-time and can be inactive, as in using vacation, sick, or other leave, without affecting his or her status. If the alien changes employers during the H-1B visa period, the new employer must file the necessary paperwork. If the employer of an H-1B alien merges with another company or sells its company, the alien’s status is not affected. However, if an alien changes occupations from the specialty occupation for which he or she petitioned, it is considered a status violation.
The H-1B visa does not prevent the alien from traveling outside the U.S. or from taking the necessary steps to immigrate permanently. Dual intent, in which an alien chooses to apply for Lawful Permanent Resident status while holding an H-1B visa, is supported by the Immigration Act of 1990. Those with H-1B visa status do not have to maintain a foreign residence during their stay in the U.S.