Definition and Eligibility
H-1B temporary workers are defined as persons who will perform services in specialty occupations on a temporary basis. The Immigration Act of 1990 defines specialty occupation as: "an occupation which requires theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation."
The H-1B status can be used to bring temporary faculty members, researchers, consultants, administrators, or individuals engaged in a variety of professional-level activities to the United States. To qualify for H-1B status, the foreign national must possess the required degree or its equivalent or possess a certificate or license that permits the foreign national to immediately practice the profession in the state of intended employment. The H-1B is employer specific; the employee may only work for the employer who filed the H-1B petition and can only perform the job indicated in the petition. (Concurrent employment is possible if each employer has an approved H-1B petition.) H-1B status also requires that the employer pay the H-1B employee wages at a certain level, as prescribed by U.S. Department of Labor (DOL) regulations; certification of appropriate salary is done on the Labor Condition Application (LCA) by the DOL. An H-1B may be initially issued for a period of up to three (3) years. The H-1B petition may be filed up to six (6) months prior to the employment start date. An individual may enter the U.S. in H-1B non-immigrant status 10 days prior to the start date of the approved petition, but he/she may not begin work until the effective date of the petition. If the employer dismisses the foreign national prior to the expiration of the authorized stay, the employer is liable for the reasonable cost of return transportation for the foreign national abroad.
Extension of Stay
Extensions of H-1B status beyond the initial three-year period may be obtained through petition submitted to U.S. CIS, but the total period of authorized stay cannot exceed six (6) years, unless the individual has progressed through the requisite steps leading toward permanent residency.
The spouse and unmarried minor (under age 21) children of an H-1B worker are granted H-4 immigration status. Spouse and dependents in H-4 status are not eligible for employment but they may attend school on a part- or full-time basis.