Immigration Answers: The H-1B Visa

With the number of skilled foreign workers growing at an extraordinary pace, more and more people are looking to come to the US through employment-based immigration opportunities. One of the most common of these opportunities is the H-1B visa. The H-1B is a unique category that allows skilled foreign workers to arrive and work in the United States and in some cases begin the journey towards eventual citizenship. However, with deadlines quickly approaching, anyone interested in applying for an H-1B needs to start making arrangements immediately.

H-1B visas are reserved for individuals that are employed within a "specialty occupation." An applicant must show that he/she has obtained at least a bachelor's degree (or foreign equivalent) and must have a job offer from for a United States employer. The most common H-1B applicants are those working in the medical, engineering and high-tech fields, although almost all employment areas are eligible. By offering an H-1B applicant employment, the US employer must certify that the applicant will be paid a fair wage and that the applicant will only work in the position specified in the submitted application.

The H-1B is attractive for many reasons. Although the length of an H-1B is dependent upon the specific requirements of the job, most H-1B visas are available for 3 years and can be extended for up to 6 years; in limited circumstances, the H-1B can be extended beyond the 6 year time frame. H-1B recipients are also allowed to bring their spouses and underage children to the US once they are granted H-1B status (these family members will be considered "H-4 visa holders"). Although H-4 recipients cannot obtain employment for themselves, they can remain in the US during with the H-1B holder. Additionally, an H-1B recipient can travel in and out of the country, therefore allowing them to return to their home country should they need to do so.

The number of H-1B visas available each fiscal year is capped. Congress has limited the number of available H-1B visas to 65,000 (the "Cap"), all of which are typically distributed within a few weeks after USCIS (US Citizenship and Immigration Service) begins accepting applications. The limited number of available petitions makes early planning a must for anyone looking to obtain an H-1B visa. Newly issued visas for the year 2008 become available on April 1, 2007, therefore requiring an applicant to begin preparing his/her application immediately and have it submitted to USCIS within weeks of this opening date. However, individuals seeking employment with non-profit organizations, universities or governmental research laboratories are excluded from the Cap and therefore can still obtain an H-1B after the 65,000 Cap visas are exhausted.

With the right amount of planning, a US employer can hire a skilled foreign worker with an H-1B visa and begin the process of building his/her future life in the United States.

Rishi is a Partner at Brown Immigration Law and works primarily in the areas of business and family immigration, as well as deportation defense. He is a graduate of UNC-Chapel Hill, The Johns Hopkins University and Case Western Reserve University School of Law. Rishi was admitted to the practice of law in Ohio in 2006.