Professional Work Visa (H-1b)

1. Overview

The H-1B is a non-immigrant visa in the United States under the Immigration and Nationality Act, section 101(a)(15)(H). It allows U.S. employers to temporarily employ foreign workers in specialty occupations. If a foreign worker in H-1B status quits or is dismissed from the sponsoring employer, the worker must either apply for and be granted a change of status to another non-immigrant status, find another employer (subject to application for adjustment of status and/or change of visa), or leave the United States.

2. H-1B and legal immigration

Even though the H-1B visa is a non-immigrant visa, it is one of the few visa categories recognized as dual intent, meaning an H-1B holder can have legal immigration intent (apply for and obtain the green card) while still a holder of the visa. In the past the employment-based green card process used to take only a few years, less than the duration of the H-1B visa itself. However, in recent times the legal employment-based immigration process has backlogged and retrogressed to the extent that it now takes many years for skilled professional applicants from certain countries to obtain their green cards. Since the duration of the H-1B visa hasn’t changed, this has meant a lot more H-1B visa holders have to renew their visas in one-year or three-year increments to continue to be in legal status while their green card application is in process.

3. Quotas and changes in quotas

The number of new H-1Bs issued each year in the United States is subject to an annual congressionally mandated quota. Each H-1B quota applies to a particular Financial Year which begins on October 1. Applications for the upcoming Financial Year are accepted beginning on the preceding April 1 (or the first working day after that date). Beneficiaries not subject to the annual quota are those who currently hold H-1B status or have held H-1B status at some point in the past six years. This annual quota has had a significant impact on the high tech industry. It has generally been set at 65,000 visas per year, with some exceptions for workers at exempt organizations like universities and colleges (note: contrary to popular belief, non-profit organizations are not automatically exempt, but may be so if affiliated with a university or college).[citation needed] In 2000, Congress permanently exempted H-1B visas going to Universities and Government Research Laboratories from the quota.

4. Duration of Stay

The duration of stay is three years, extendable to six. An exception to maximum length of stay applies in certain circumstances:

1.one-year extensions if a labor certification application has been filed and is pending for at least 365 days; and

2.three-year extensions if an I-140 Immigrant Petition has been approved.

Despite a limit on length of stay, no requirement exists that the individual remain for any period in the job the visa was originally issued for. This is known as H1B portability or transfer, provided the new employer sponsors another H1B visa, which may or may not be subjected to the quota. Under current law, H1B visa has no stipulated grace period in the event the employer-employee relationship ceases to exist.

5. Dependents of H-1B visa holders

H-1B visa holders are allowed to bring their immediate family members (spouse and children under 21) to the United States under the H4 Visa category as dependents. An H4 Visa holder may remain in the U.S. as long as the H-1B visa holder remains in legal status. An H4 visa holder is not eligible to work in the U.S. and is not eligible for a Social Security number (SSN).[76] An H4 Visa holder may attend school, obtain a driver’s license and open a bank account while in the US. In order to claim a dependent on a tax return or file a joint tax return, the dependent will have to obtain an Individual Tax Identification Number (ITIN) which is used only for tax filing purposes