# Overview: The H-1B Visa
The H-1B visa allows U.S. employers to hire foreign-born professionals.
To qualify for an H-1B visa, one must be a:
The H-1B application process consists of three major steps:
It is important to note that the H1B visa is a temporary visa-it does not lead to permanent residency, but does give an individual temporary status and the ability to work for the sponsoring employer in the specified position. H-1B workers are not required to maintain a foreign residence abroad, and they have the ability to pursue permanent residency (through labor certification, etc.) while they are in the United States in H-1B status.
The H-1B Cap
Regular H-1B Cap - 65,000 visas per year
Each fiscal year, the USCIS grants 65,000 H-1B visas. Of these 65,000 visas, 6,800 are reserved for the H-1B1 program for nationals of Chile and Singapore. The fiscal year begins on the first date the employee is allowed to begin employment based on the H-1B visa. For the 2011 fiscal year, that date is October 1, 2010.
It is important to note that the cap only applies to the new employment of an H1B worker. For example, if an employer applies to extend the status of a current H-1B employee, the extension is not counted against the cap. Likewise, if a person who has already been counted against the cap seeks employment with a new company, the new company may apply for an H-1B petition without being subject to the cap. However, this will not be true if the H-1B worker is moving from an exempt employer to a non-exempt employer because, in that case, the H-1B worker's visa has not previously been counted against the cap.
Exemption from H-1B Cap for Persons with a U.S. Master's Degree or higher - 20,000 visas per year
The first 20,000 H-1B visas issued to individuals with a U.S. master's degree or higher in a specialty related to the intended employment are exempt from the H-1B cap. Employers do not have to make a special showing that a U.S. master's degree or higher is required for the position they seek to fill by employing the H-1B worker.
Exemption from H-1B Cap for Persons who Work at Certain Employers
Persons may be exempt from the H-1B cap if they work at institutions of higher learning or if they are employed in nonprofit research. In order to qualify, the H-1B worker is required to be employed by the employer who qualifies for the exemption, but the H1B worker does not have to be employed by the exempt employer. For example, a doctor employed by a medical group, but who provides services at a university hospital, would be exempt from the H-1B cap.
The following employers are exempt from the H-1B cap:
Such a nonprofit organization or entity includes, but is not limited to, hospitals and medical research institutions. "Related to" or "affiliated with" means the entity is connected to or associated with the institution of higher education through shared ownership or control by a board or federation operated by the institution of higher education, or is attached to the institution of higher education as a member, branch, cooperative, or subsidiary.
"Nonprofit organization or entity" means the organization or entity is defined as a tax exempt organization under IRS regulations and has been approved as a tax exempt organization for research or educational purposes by the IRS.
An employer seeking to employ an H-1B worker must establish that the prospective employee is qualified to undertake the services required for the "specialty occupation." A specialty occupation is one that requires the theoretical and practical application of a body of specialized knowledge, along with at least a bachelor's degree (the degree must be in a field that is relevant to the position) or its equivalent.
To establish that a job qualifies as a specialty occupation, on of the following four criteria must be met:
Examples of specialty occupations include: accounting, architecture, business specialties, education, engineering, health and medicine, law, and theology. Certain nurse positions that require at least a bachelor's degree may qualify.
Labor Condition Application
As a prerequisite to obtaining the services of an H-1B worker, an employer must first file a Labor Condition Application (LCA) with the U.S. Department of Labor.
The LCA has two purposes:
The Department of Labor typically requires employers to submit the LCA electronically through its LCA Online System. After an LCA has been approved, it is valid for three years.
Public Inspection File: within one business day of filing the LCA, the employer must make available for public inspection the LCA and any supporting documentation. The public access file must be maintained by the employer for one year after the termination of employment of the last alien worker under that LCA.
The public inspection file must include: a copy of the LCA with evidence that the LCA was filed, a statement of the salary paid to the H1B worker, the prevailing wage for the H1-B worker's position, the source for the prevailing wage determination, and an explanation of how the employer determined the wage for the H1B worker.
After receiving approval of the LCA, an employer must file Form I-129, Petition for Nonimmigrant Worker, for the foreign-born employee it seeks to hire. The employer must file the approval notice for the LCA with the Form I-129.
When filing Form I-129, the employer must show that the position the employer seeks to fill qualifies as a specialty occupation. The employer must also show that the foreign-born employee qualifies for the position based on his or her experience. In order to fulfill the experience requirement, the employer must demonstrate that the foreign-born employee has any professional licenses, including state licenses, required for the position, as well as the requisite education and qualifications.
The employer must pay three sets of fees for an H-1B petition:
Periods of Admission and Extensions
H-1B visas are issued for an initial period of three years (not to exceed the period of validity of the certified LCA), at which point the employee may apply for an extension for another three years. The total maximum period of stay is six years.
However, there are circumstances in which an H1B alien may apply for an extension of stay beyond the limit of six years. An exception to the six-year rule exists for employees who have a labor certification application, or a Form I-140, Petition for Alien Worker, that was filed on their behalf and that has been pending for at least 365 days. In these cases, employers may apply for one-year extensions beyond the six-year period for their employees. Employers may seek multiple one-year extensions while the employee's application for permanent residency is pending..