H1 visa is a non-immigrant, temporary and employment based visa for U.S. It is a way to recruit foreign professionals and graduate students to work in the U.S. H1-B is needed when one aspires to go to the U.S. for a professional job/speciality occupation. Speciality occupation is where theoretical and practical application of specialised knowledge is required. In order to be eligible for this visa, one must be holding a bachelor’s degree or master’s degree in the specific field in which one wants to pursue employment. Apart from basic requirement of equivalent degrees, some professions may require the person to have a licence to work in U.S. In this type of visa, an employer from U.S has to first offer a job to the foreigner and then file a petition with the U.S immigration department to grant visa for the prospective employee. It is up to the USCIS to decide whether the concerned job profile is a speciality occupation and whether the person has requisite theoretical and practical qualification to perform that job. If they are convinced about both these aspects, visa will be granted. If the person is granted visa, the spouse and unmarried children under the age of 21 years can accompany the H1B visa holder on H4 visa category.
H1B visa has annual quota and cap limit for each financial year. The cap limit is decided by Congress. The fiscal year starts on 1st October and petitions for H1B visa can be filed up to six months before the start date of the fiscal year. However,employees at institution of higher education, a non-profit research organization or government research organization are exempt from the annual cap limit. H1B visa is granted for three years generally. However, it can be further extended for three years if the employee maintains correct legal status. Thus, a person can usually work maximum for six years on this visa.
Unlike other non-immigrant visa types, dual intent is accepted in this visa category. In other categories, usually the person has to show maintenance of foreign residence to prove that they are going to the U.S temporarily and have all the intentions of coming back to homecountry. A person who moves to U.S on H1B visa can lawfully apply for permanent residence in the U.S for green card.Application for permanent residence does not adversely affect their H1 status. If one is not able to get permanent residency before expiry of H1B visa, then one will have to live outside the U.S for minimum one year before applying again for another H1B visa.
The process begins with the U.S employer offering the job and then filing a petition to immigration department on behalf of the employee. The employer will also have to file ‘Labour Certification Application’- a form containing all the important information about the visa sponsoring company. Then various documents relating to credentials of the employee and other forms will have to be submitted to USCIS along with the prescribed fees. The processing time can take a few months. The processing time is usually mentioned in the receipt sent by USCIS to the sponsoring company. Generally the case will be approved within the processing time mentioned in the receipt. There is also an option for premium processing. In that the processing time is 15 days and the Government charges extra for that.
H1B visa is job specific visa. However, it is open to the person to change the job. The change of employer is not likely to affect the visa status. However, the new employer is required to file a petition before the employee starts working for them. Such transfer of visa to another employer is not included in the cap limit and can be filed all year around.
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