The H-1B nonimmigrant classification is a great visa through which qualified foreign nationals may seek admission into the United States on a temporary basis to work in their fields of expertise. Prior to employing an H-1B temporary worker, a U.S. employer must file an H-1B petition with United States Citizenship and Immigration Services (USCIS). The foreign Nationals may be admitted to the United States in H-1B status for a maximum period of six years; however, the H-1B petition may only be approved for a maximum period of three years for each time.

Originally, the H-1 nonimmigrant category was created under the Immigration and Nationality Act of 1952 (P.L. 82-414) to assist U.S. employers needing workers temporarily. Over the years, Congress made series of revisions to the H-1 visa category and in 1989, split the H-1 visa into (a) and (b). The Immigration Act of 1990 (P.L. 101-649) amended the law by, among other things, creating the H-1B category for non-immigrants, who are sought to work in specialty occupations, and fashion models “of distinguished merit and ability.” It added labor attestation requirements and numerical limit of 65,000 (currently 6800 are reserved for Chile & Singapore under Free Trade Agreement) on H-1B visa issued annually. Unlike most temporary worker visa categories, H-1B workers can intend both to work temporarily and to immigrate permanently (dual intent) at some future time. (Ref. 8 CFR §214.2(h)(16)(i)).

Prior to filing the H-1B petition with USCIS, the U.S. employer must file a Labor Condition Application (LCA) (ETA Form 9035E) with the U.S. Department of Labor (DOL) specifying the job, salary, length and geographic location of employment and get it certified. Once DOL certifies the LCA, then the U.S. employer may file the H-1B petition with USCIS along with the beneficiary’s qualifications to establish that the beneficiary is qualified as a member of professions to assume the position of a specialty occupation.

Most importantly, approval of an H-1B petition does not equate to admission of the alien to the U.S. in H-1B status. The Department of State (DOS) plays a vital role in the H-1B admission process. Upon Approval of the H-1B petition, the State Department Issues visa for the H-1B workers living abroad or USCIS changes status to H-1B for the workers living in United States in another status (such as B-1/B-2, L-2, H-4, etc.).

Note: At each step of the process, the application/petition could be denied; employers have the ability to resubmit their forms or appeal such decisions.