Under section 101(a)(15)(H) of the US Immigration and Nationality Act, US employers are allowed to hire (on temporary basis) foreign workers in specialty occupations. Qualified foreign nationals are to be issued an H-1B visa, which is a non-immigrant visa that has a duration of three years, but which may be extended up to six years. Though non-immigrant in nature, H-1B visa holders are eligible to seek permanent residency in the nation.
Possible recipients of an H-1B visa include foreign nationals who are hired to perform services in: specialty occupations; research and development projects for the Department of Defense (DOD); and, fashion modeling.
The most basic criteria for a foreign national to qualify for an H-1B visa are; (i) a foreign national’s possession of a Bachelor’s or higher degree from a recognized foreign institution or accredited US university/college, or a specialty training plus work experience (at least 12 years in his/her chosen field of specialty) which may be a substitute for the Bachelor’s or higher degree, and, (ii) filing of an approved form ETA-9035, Labor Condition Application (LCA), with the form I-129, Petition for a Non-immigrant worker by the US employer, who intends to hire the foreign national, with the US Citizenship and Immigration Services (USCIS). The sensitivity of, and the demands associated with, the works that fall under H-1B visa category call for strict compliance with these basic requirements.
The specific visa categories and the other criteria for each are as follows:
1. H-1B Specialty Occupations. The list of jobs under this visa category includes accounting, medicine and health, business specialties, mathematics, engineering, chemistry, social sciences, education, arts, theology, law, biotechnology, and so forth. Other requirements in order to qualify for an H-1B Specialty Occupations visa include:
- Acquisition of an unrestricted state registration, license, or certification that will allow the foreign national to fully practice the specialty occupation
- Proof of progressively responsible experience in the chosen field of specialty (which is equivalent to a degree in the chosen field), and recognition of expertise through the holding of responsible positions that are directly related to the specialty
2. H-1B2 DOD Researcher and Development Project Worker. Though this H-1B category does not require the second (ii) basic requirement mentioned above, the work can only be provided through a government-to-government agreement that is administered by the US Department of Defense. Other requirements that need to be complied with under this visa category are the same as in H-1B Specialty Occupations.
3. H-1B3 Fashion Model. This visa category is issued only to fashion models of distinguished merit and ability. As for the basic requirements, a labor certification (from the US Department of Labor) and the filing of an approved LCA with the form I-129 by the prospective employer are the only criteria that need to be complied with.
Below are some of the other essential things that foreign nationals need to understand about the H-1B visa:
- 12 points need to be earned to qualify under the H1B visa program (3 points are given for every year of studies in a college or university and 1 point for each year of work experience)
- The annual numerical cap or limit for H-1B visa is 65,000 for each fiscal year; exemption from this cap, however, is granted to the first 20,000 petitions filed in behalf of those with a US Master’s degree or higher, and to those who are to be employed in institutions of higher education or in non-profit entities affiliated to these, government research organizations, or non-profit research organizations
- While H-1B non-immigrant visa recipients are usually allowed to work in the US only up to six years, exceptions, based on sections 104(c) and 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21), may be applied
- Costs of return transportation of foreign national upon termination of work by the US employer or at the end of his/her authorized period of stay is to be shouldered by his/her employer (this does not include voluntary resignation, though)
- An H-1B visa holder is allowed to have multiple works. Each of his/her employers, though, should approve his/her Form I-129 petition. He/She may also work for another employer, requiring only an H1 transfer case and the filing of new Form I-129 petition (by his/her new employer)
- As an employee in the US, an H-1B visa holder enjoys all the benefits of employment, including sick/maternity/paternity and vacation leaves, going on strike
- An H-1B visa holder’s family (spouse and unmarried children below 21) is allowed to stay in the US for as long as the H-1B visa is valid.