FAQ:  What are H-1B visas and Other Options for Professionals?

What are H-1B visas and Other Options for Professionals?

The H-1B category is appropriate only for positions that are professional. The Citizenship and Immigration Services (USCIS) has defined “profession” (or “specialty occupation” as it is called in the statute) as an occupation which requires theoretical and practical application of a body of highly specialized knowledge needed for performance in such fields as computer science, engineering, social sciences, business specialties, and the arts.  Entry to a profession usually requires completion of a specific course of education at an accredited college or university, culminating in at least a bachelor’s degree in a specific occupational specialty.  To qualify, the degree is ordinarily needed, but the Service also accepts a state license where it is required, as well as a combination of education, training and experience, provided the applicant is practicing as a professional and is recognized as such.

The H-1B is limited to stay of six years (an initial stay of three years, renewable once for an additional three year period) unless the stay is only intermittent or less than six months a year.  After leaving for a year, the person is again eligible for another six-year stay.  H-1B professionals may be able to obtain an extension beyond the six-year limit if the employer is pursuing green card status for them.

The USCIS will not process an H-1B petition without proof that a “labor condition application” (LCA) by the employer has been certified by the U.S. Department of Labor (DOL).  Among the required statements in the LCA is an attestation that the salary offered meets prevailing wage standards in the geographic area and is not less than the employer pays to other workers with similar jobs and qualifications.  The employer must also provide notice to the other employees.
H-1B visas are currently subject to an annual quota.  There are currently 65,000 H-1B visa numbers available for any given fiscal year (October 1st to September 30th of the following year) minus 6,800 H-1B visas reserved for Chilean professionals (1,400) and for Singaporean professionals (5,400).  H-1B visas can only be filed with the USCIS six months prior to the beginning of the new fiscal year, or starting from April 1st of any given year.  In recent years, there have been many more H-1B petitions submitted than there are numbers available.  As a result, H-1B visa petitions received in the first week of April of recent years have been subject to a lottery, rendering it difficult to predict the likelihood of obtaining an H-1B visa.

As mentioned above, there are 6,800 H-1B visas reserved for Chilean professionals (1,400) and for Singaporean professionals (5,400) called H-1B1 visas, which were created in January 2004 following free trade agreements the United States entered into with Singapore and Chile.  Nationals of Singapore and Chile may apply for H-1B1 visas directly at their U.S. Embassies or Consulates without first having to submit a petition to USCIS.  In addition, a completed LCA certified by the U.S. DOL must accompany an H-1B1 application.  H-1B1 visas are valid for 18 months but can be admitted only for one year.  H-1B1 visas are renewable in one year increments without limitation.  At the end of the fiscal year, any unused H-1B1 visa numbers are returned to the pool of 65,000 H-1B visa numbers made available for any given fiscal year.

In addition, the E-3 category is reserved for professional who are Australian nationals.  The E-3 category also requires the submission of an LCA by the sponsoring employer which has been certified by the U.S. DOL.  Australian nationals may apply for an E-3 visa directly at a U.S. Consular post in Australia, thus significantly increasing the processing time of the application (although E-3 petitions may also be submitted to USCIS).  The E-3 visa is valid for two years and is renewable indefinitely.

Another visa option available is the TN professional status visa reserved for Canadian and Mexican nationals under the NAFTA Agreement.  As of October 16, 2008, TN visas are issued in three year increments.  They are renewable indefinitely so long as the foreign national maintains his or her intention to return home upon completion of the temporary assignment.  There is a quota of 10,500 visas per year, but that has yet to be reached and they are not subject to a quota.