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H-1B Visas: What You Need to Know

The H-1B program is designed to give companies in the United States the opportunity to hire international professionals with expertise in specialty occupations. An H-1B visa enables a foreign employee to work in the U.S. for a designated period of time.

These "specialty occupations" require highly specialized theoretical or technical knowledge in a specific field. Common fields that qualify include: engineering, scientific research, healthcare and medicine, finance, computing, law and education. Generally, an employee is also required to have a bachelor's degree or the foreign equivalent in his or her area of study.

Foreign professionals are allowed to be temporarily employed by companies in the U.S. on a nonimmigrant basis. The H-1B visa, however, differs from several other nonimmigrant visas in that it is considered a "dual intent" visa. Therefore, an individual will not be denied an H-1B visa because he or she has intentions of becoming a permanent resident. An employee also has the ability to apply for a permanent resident card ("green card") during the term the H-1B visa is in effect.

H-1B Visa Application

Employers who wish to hire foreign professionals on H-1B visas are required to petition the U.S. Citizenship and Immigration Services (USCIS). An H-1B petitioner needs to file a Form I-129. Additional documents required include a Labor Condition Application and evidence of the foreign professional's educational background or work experience. Petitions may be filed up to six months prior to the requested start date of employment.

Visa Caps

The U.S. Congress sets a cap on the amount of H-1B visas that can be issued each year. The cap for 2012 is set at 65,000. Under the advanced degree exemption, an additional 20,000 petitions submitted by individuals who obtained a U.S. master's degree or higher are exempt from the cap. Workers seeking employment at institutions of higher learning or certain research organizations are also not subject to the cap.

Durations and Extensions

Once approved, an H-1B visa is valid for an initial time frame of up to three years. The original visa can also be extended once for an additional three years. Thus, generally an individual can have an H-1B status for a maximum of six continuous years. Under certain circumstances, however, this period may be further extended. After a foreign professional's H-1B visa expires he or she must remain outside of the United States for one year before a new H-1B visa application will be considered.

Families of H-1B Visa Holders

Many H-1B visa holders may wish for their family to accompany them and live in the United States. H-1B visa holders may request H-4 visas for their immediate family members, including their spouse and any children under the age of 21. Family members on H-4 visas are not permitted to obtain paid employment.

Criticisms of the H-1B Visa Program

Like many issues dealing with immigration, H-1B visas have been a source of controversy. Critics argue the H-1B system needs to be improved to make it less burdensome and time consuming, so the U.S. can continue to attract the best professionals across the globe.

Statistics may lend support to this view. In 2008, on the first day of availability, all 65,000 H-1B visas were claimed. The eagerness for visas has significantly declined in recent years. Only about one quarter of the available visas were requested on the first day of availability in 2011.

The caps and burdensome requirements may also cause some employers to attempt to circumvent the system. Recently, the New York Times reported that a large Indian outsourcing company, with a significant amount of workers in the U.S., is under federal investigation for its use of B-1 visas. B-1 visas are intended for short term business visitors, are not capped, and are easier to obtain than H-1B visas. The company has been accused of improperly allowing employees on B-1 visas to perform the same type of longer-term work as those on H-1B visas.

Others argue the government should do away with the caps on H-1B visas all together. In an address to the Council on Foreign Relations this June, New York Mayor Michael Bloomberg explained why the H-1B visa caps may be harmful and advocated for ending the limits. He explained, "We must stop telling U.S. companies that they cannot hire the high-skilled workers they need. By making it difficult for them to obtain temporary and permanent visas for high-skilled workers, the federal government is slowing growth and worse, promoting the outsourcing of American jobs."

How an Attorney Can Assist

The complexities and timelines of the H-1B visa process make the guidance of a knowledgeable immigration lawyer extremely valuable. If you are a business or foreign professional petitioning for an H-1B visa or H-1B visa extension contact an attorney experienced with H-1B visas for advice and assistance.

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