The H classification is divided into four (4) categories.
H-1B Visa – Specialty Occupation
The H-1B visa is the most common visa used by employers in the United States to employ foreign nationals. It is a temporary professional visa that allows professionals to enter the United States to accept temporary employment within specialty occupations. A specialty occupation is one that requires theoretical or technical expertise in specialized fields and the attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent in work experience) as a minimum for entry into the occupation in the U.S.
Only the initial H-1B visa petition is subject to annual quota restrictions. A maximum of 65,000 H-1B non-immigrant visas are issued per fiscal year (from October 1 to September 30). Nonetheless, the first 20,000 petitions filed for a beneficiary who has obtained a U.S. Master’s degree or higher are exempt from this cap.
Furthermore, the cap does not apply to applicants filing H-1B petitions through institutions of higher education, nonprofit research organizations, and government research organizations and filing for amendments, extensions, and transfers of their current H-1B visas.
The USCIS starts accepting H-1B cap subject visa petitions on April 1st of each year but no more than six month before the H-1B start date. As such, the employer should contact an attorney three to four months in advance to April 1st, to make sure that the petitions are prepared and filed on time.
To qualify for an H-1B visa:
- The employer must demonstrate that the proposed employment qualifies as a specialty occupation that is one requiring a minimum of a Bachelor’s or higher degree. (ex: accountant, acupuncturist, computer programmer, financial analyst, graphic designer, sales manager, etc.);
- The foreign national must have the required qualifications, meaning:
- A U.S. baccalaureate or higher degree which is required by the specialty occupation;
- A foreign degree determined to be equivalent to the U.S. baccalaureate degree; or
- A combination of education and experience which is equivalent to the required U.S. degree.
- Where licensure is required to practice a profession, the applicant must hold appropriate licensure under state law;
An employer can request, by paying an additional fee, premium processing service which requires the USCIS to adjudicate the petition within 15 calendar days.
Terms and Conditions:
- The employer must pay its H-1B worker(s) at least the “required” wage which is the higher of the prevailing wage or the employer’s actual wage (in-house wage) for similarly employed workers. The prevailing wage is the wage rate for the occupational classification in the geographical area of employment;
- The employer must pay certain costs and expenses on behalf of an H1B employee, such as the return transportation costs of the H-1B employee if the latter is dismissed prior the completion of the H-1B term;
- The H-1B employee can enter the U.S. under the H-1B status up to ten (10) days in advance of the employment start date and is also granted permission to leave ten (10) days after expiration of his/her status. However, there is no “grace period” for H-1B employees terminated before the completion of the term of their visa;
- The H-1B visa is employer specific, meaning that the H-1B employee is limited to employment with the approved employer/petitioner only. As such, a change of employer requires a new H-1B petition;
- H-1B foreign specialty workers are not required to maintain foreign residence and may seek permanent residence in the U.S.
Period of Stay:
The H-1B visa is usually granted in three-year increments not to exceed a total of 6 years, unless a permanent residence application is in progress, in which event additional extensions beyond six-years may be obtained.
All the time spent outside the U.S. is subtracted and does not count toward the six-year period. As such, the time out of the U.S. may be recaptured to the six years.
Additionally, if an H-1B holder remains outside the U.S. for one year, s/he may begin the six-year period anew, but the new petition would be subject to the H-1B cap.
Family of H-1B Holders:
The spouse and unmarried children under 21 years of age of an H-1B holder are eligible for H-4 status with the same restrictions as the principal. Nonetheless, the dependents are not authorized to work in the U.S. but they can attend school.
H-2A Visa – Temporary Agricultural workers
The H-2A visa allows U.S. employers to employ foreign nationals to perform agricultural labor or services of a temporary or seasonal nature on a temporary basis.
H-2B Visa – Non-Agricultural Workers
The H-2B non-agricultural temporary worker program allows U.S. employers to employ foreign nationals to fill temporary nonagricultural jobs.
The number of H-2B classifications that may be granted per fiscal year is statutorily limited.
Once the H-2B cap is reached, the USCIS only accept petitions for H-2B workers who are exempt from the H-2B cap.
H-2A and H-2B Visas – General Information
To qualify for an H-2A and an H-2B visas:
- The employer’s need for the prospective worker’s services or labor must be temporary or seasonal;
- There must be no sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work;
- The employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
The H-2A and H-2B petitions are only available for nationals of countries eligible to participate in the H-2 programs.
Period of Stay:
The H-2 classifications are granted for a period no longer than one (1) year and can be extended in increments of up to one (1) year. The maximum period of stay in an H-2A or H-2B classification is three (3) years.
Family of H-2 Workers:
The spouse and unmarried children under 21 years of age of an H-2 holder are entitled to an H-4 nonimmigrant classification. However, they are not authorized to engage in employment in the United States.
H-3 Visa – Nonimmigrant Trainee
The H-3 nonimmigrant visa category is for an alien coming temporarily to the U.S. as a trainee or as a Special Education Exchange Visitor.
This classification is not intended for U.S. employment but to provide an alien with job-related training for work that will ultimately be performed outside the United States.
- Under the H-3 Trainee program, the alien receives training, other than graduate or medical education training, that is not available in his/her home country.
- Under the H-3 Special Education Exchange Visitor, the alien participates in a special education exchange visitor training program for children with physical, mental, or emotional disabilities.
Period of Stay:
The H-3 Trainee program allows a trainee to remain in the United States for up to 2 years, while the H-3 special education exchange visitor program is for up to 18 months.
Family of H-3 Visa Holders:
The spouses and children who are under the age of 21 of the H-3 holder are entitled to accompany him/her to the U.S. However, the family members will not be authorized to work in the United States.
For more information about this visa category contact us today to schedule a professional consultation with an Immigration Attorney. Call (305) 515-VISA (8472) or click here.
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