H1B Frequently Asked Questions
What is an H-1B?
The H-1B is a nonimmigrant
classification used by an alien who will be employed temporarily
in a specialty occupation or as a fashion model of distinguished
merit and ability.
What is a specialty occupation?
A specialty occupation requires
theoretical and practical application of a body of specialized
knowledge along with at least a bachelorís degree or its
equivalent. For example, architecture, engineering, mathematics,
physical sciences, social sciences, medicine and health,
education, business specialties, accounting, law, theology, and
the arts are specialty occupations.
Is there an annual limit on the
number of H-1B aliens?
Yes. The current law limits to
195,000 the number of aliens who may be issued a visa or otherwise
provided H-1B status in FY2001. In 2002, the number of aliens who
can be issued a visa will also be 195,000.
How does one apply?
H-1B status requires a sponsoring
U.S. employer. The employer must file a labor condition
application (LCA) with the Department of Labor attesting to
several items, including payment of prevailing wages for the
position, and the working conditions offered. The employer must
then file an I-129 petition with the INS and, unless specifically
exempt under the law, an additional $500 fee to sponsor the H-1B
worker. Based on the INS petition approval, the alien may apply
for the H-1B visa, admission, or a change of nonimmigrant status.
How long can an alien be in H-1B
Under current law, an alien can be
in H-1B status for a maximum period of six years at a time. After
that time an alien must remain outside the United States for one
year before another H-1B petition can be approved. Certain aliens
working on Defense Department projects may remain in H-1B status
for 10 years.
Who can an H-1B alien work for?
H-1B aliens may only work for the
petitioning U.S. employer and only in the H-1B activities
described in the petition. The petitioning U.S. employer may place
the H-1B worker on the worksite of another employer if all
applicable rules (e.g., Department of Labor rules) are followed.
H-1B aliens may work for more than one U.S. employer, but must
have an I-129 petition filed by each employer.
What if the alienís
As long as the alien continues to
provide H-1B services for a U.S. employer, most changes will not
mean that an alien is out of status. An alien may change employers
without affecting status, but the new employer must file a new
I-129 petition for the alien before he or she begins working for
the new employer. The merger or sale of an H-1B employerís
business will not affect the alienís status in many instances.
However, if the change means that the alien is working in a
capacity other than the specialty occupation for which they
petitioned, it is a status violation.
Must an H-1B alien be working at
As long as the employer/employee
relationship exists, an H-1B alien is still in status. An H-1B
alien may work in full or part-time employment and remain in
status. An H-1B alien may also be on vacation,
sick/maternity/paternity leave, on strike, or otherwise inactive
without affecting his or her status.
Can an H-1B alien travel outside
An H-1B visa allows an alien
holding that status to reenter the U.S. during the validity period
of the visa and approved petition.
Can an H-1B alien intend to
immigrate permanently to the U.S.?
An H-1B alien can be the
beneficiary of an immigrant visa petition, apply for adjustment of
status, or take other steps toward Lawful Permanent Resident
status without affecting H-1B status. This is known as "dual
intent" and has been recognized in the immigration law since
passage of the Immigration Act of 1990. During the time that the
application for LPR status is pending, an alien may travel on his
or her H-1B visa rather than obtaining advance parole or request
other advance permission from the INS to return to the U.S.