Introduction
The H-1B is a nonimmigrant classification used by an alien who will be employed temporarily in a specialty occupation or as a fashion model of distinguished merit and ability. Specialty occupation refers to those positions requiring at least a bachelor’s degree to perform the job duties.
Many international students came to the United States studying in undergraduate or graduate programs under F-1 student visas. After graduation, they are entitled to a one-year period practical training. During the one year, they find a job and work the employer under practical training. If both the employer and the employee wish to continue the employment after one year, in most cases the employer will file a H-1B petition for the employee. Once approved, the employee can continue his or her employment under the H-1B visa.
In the long run, the employee will have to apply for permanent residence (green card) from either employment or relative based petition because the H-1B visa has a six-year limitation. Before the employee obtains his or her green card, the employee needs to have a legal status in order to stay and work in the United States. H-1B visas serve this bridging purpose for many many green card applicants.
Highlights of H-1B Visa
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Each H-1B petition can request up to three years. The status needs to be renewed before the expiration of approved period.
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In general, there are two most important aspects in H-1B petitions. The first is that the position must be a professional one, meaning a position requiring at least a bachelor’s degree. Secondly, the job duties of the position should match the employee’s academic background.
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In recent years, the CIS developed new considerations in H-1B petition. For instance, the CIS believes that some positions are not necessary if the size of employer’s company is not big enough. A commonly seen position that may have this problem is Accountant. The CIS may adopt the view that, given the company size of a particular employer, a bookkeeper is sufficient for the employer rather than an accountant. Note that bookkeeper is not a professional job as defined in immigration law, therefore is not entitled to a H-1B visa.
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Some positions need to be carefully evaluated because those position may not be "professional" in the eye of the CIS. Examples are such as "Managers" and some computer related positions. The CIS believes that a bachelor’s degree may not be necessary in the performance of job duties of these positions.
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The Twenty-First Century Act of 2000 ("AC21") allows an alien employee to obtain an extension of H-1B status beyond the six-year mamimum period, when:
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365 days or more have passed since the filing of any application for labor certification, that is required or used by the alien to obtain status as an employment based immigrant, or
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365 days or more have passed since the filing of an employment based immigrant petition.
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