In general, a valid employer-employee relationship is determined by whether the U.S. employer may hire, pay, fire, supervise or otherwise control the work of the H-1B worker. In some cases, the sole or majority owner of the petitioning company or organization may be able to establish a valid employer-employee relationship, if the facts show that the petitioning entity has the right to control the beneficiary’s employment. Currently there is an annual numerical limit/“cap” of 65,000 H-1B visas issued.
The initial H-1B visa may be issued for up to three years. It may then be extended in the first instance for up to two years, and later on for one year, for a maximum of 6 consecutive years. In some cases, the H-1B visa can be extended beyond the 6 year limit.
One of the privileges of the H-1B visa, as opposed to many other nonimmigrant visas, is that it is a ‘dual intent’ visa. In other words, under the terms of the H1B visa, the alien employee can also apply for a Green Card and become a permanent resident, and the H-1B visa will not be denied or invalidated. If an employer is willing, the employer can sponsor a foreign employee in H1b status for a green card application.
Your job must qualify as a specialty occupation by meeting one of the following criteria:
- A bachelor’s degree or higher degree or its equivalent is normally the minimum requirement for the particular position;
- The degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor’s degree in a field related to the position;
- The employer normally requires a degree or its equivalent for the position; or
- The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
- USCIS often refers to the Occupational Outlook Handbook (OOH) from the Department of Labor (DOL) to help determine whether certain jobs require a degree.
- If your position qualifies as, but you do not have at least a bachelor’s degree in a field related to your position, then you may qualify by:
- Holding an unrestricted state license, registration or certification which authorizes you to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or
- Having education, specialized training, and/or progressively responsible experience that is equivalent to the completion of a U.S. bachelor’s or higher degree in the specialty occupation, and having recognition of expertise in the specialty. through progressively responsible positions directly related to the specialty. In general, 3 years of work experience or training in the field is considered as equivalent to 1 year of college.
NOTE: Submit equivalency documents for all foreign degrees. If work experience is taken into account, please submit an equivalency evaluation from a college official. If the equivalency evaluation is not from the register, submit a statement from the school’s register to establish that the particular evaluating official is authorizes to grant college-level credit on behalf of his or her institution.
H-4 visas are issued to an H-1 holder’s spouse and children under twenty-one years of age. Holders of H-4 visas are considered to be dependents of H-1B visa holders. As H-4 status holders, spouses and children under twenty-one years of age may be entitled to enter and remain in the United States for the duration of the H-1 holder’s authorized stay.