What is an H-1B visa?
The H-1B Temporary Worker is designed for individuals coming to the United States to work in a specialty occupation. A specialty occupation is defined as one that requires, “theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor’s or higher degree, or its equivalent, as a minimum requirement.”
What are the time limits for H-1B?
H-1B status may be granted initially for a maximum of 3 years. Extensions may be granted after that for up to a cumulative maximum of 6 years. This includes H-1B employment with all employers in the U.S. as well as time spent in L-1 status. In certain circumstances this period can be extended for H-1B visa holders who are in the process of becoming a permanent resident based on employment. After 6 years in this classification an individual must be physically outside the U.S. for at least one year before resuming eligibility for the H-1B visa.
The H-1B visa holder is lawfully allowed to have "dual intent" which means the individual may be employed in a temporary position while at the same time working toward permanent residency.
The H-1B application is a three-step process involving the U.S. Department of Labor (DOL) and U.S. Citizenship and Immigration Services(USCIS).
- Prevailing Wage - The prevailing wage determination requires employers to ensure that the wage offered is not discriminating against U.S. workers by offering wages that are significantly lower than the actual wage. The H-1B regulations state that the employer pays the higher of the actual wage, that is the wages paid to other workers with similar duties and experience, or the prevailing wage.
- Labor Conditions Application - Kansas State University must attest to the following: higher of the two wages will be paid to the employee; that the employee is eligible for the same benefits as other similarly employed U.S. workers; that the employee is not being employed because U.S. workers are out on strike or lockout; that the employment of the international will not adversely affect the working conditions of other workers; and that proper notification was given of the university's intent to hire an H-1B non-immigrant.
- H-1B petition is filed with USCIS.
If the foreign national is currently outside the U.S., there will be a 4th step. He or she will need to apply for an H-1B visa at a U.S. consulate in order to enter the U.S.
When can employment in H-1B status begin?
The employee may not begin work until U.S. Citizenship and Immigration Services (USCIS) has issued an approval notice granting the H-1B classification as well as valid starting and ending dates.
The "portability privilege" may apply if the employee already holds the H-1B classification from another employer in the U.S. Portability allows the individual to begin work upon notice that the petition was received by USCIS rather than waiting for official approval of the petition, assuming the individual is not currently out of status for other reasons. Individuals that require an extension can continue to work so long as the H-1B was filed with USCIS prior to the expiration of the current H-1B status. In both cases, the individual can be employed for 240 days while awaiting the H-1B approval.
The H-1B visa holder may be employed only by the employer whose petition has been filed on behalf of the individual and only in the position and salary described therein. In other words, it is both employer specific and position specific. The position may be part-time, as long as the individual does not exceed the hours and salary specified in the H-1B petition. If the beneficiary is working on a part-time basis, the department must keep track of the total number of hours actually worked each week.
Spouses and dependent minor children (20 years of age or younger) are given the H-4 visa classification. In this classification they are not eligible to work in the U.S. under any circumstances. They may attend school. Spouses and dependent children may be eligible for other visa classifications in their own right, such as student (F-1), temporary worker (H-1B), or exchange visitor (J-1). For further information for dependents visit our page, Information for Dependents.