The H-1B visa classification may be utilized for foreign nationals temporarily employed in the United States in occupations or professions requiring a specific educational background.

What is the H-1B visa? It permits individuals to come to the U.S. and perform services in a "specialty occupation" which requires the theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor's degree or higher in a particular specialization as minimum entry for the occupation in the U.S.

How is the H-1B visa obtained? The employer 1) seeks a determination that the salary offered meets or exceeds the "prevailing wage" for similarly situated workers in the area of intended employment; 2) files a Form ETA 9035 Labor Condition Application (LCA) with the U.S. Department of Labor (DOL) and receives certification of the filing; and 3) files Form I-129 Petition for a Nonimmigrant Worker with the U.S. Citizen and Immigration Services (CIS) with supporting documentation. For an individual who is physically present in the U.S., the employer requests a change of visa classification to H-1B or an extension of stay in that classification. For an individual outside the U.S., the employer requests the approval to be communicated to the U.S. Consulate abroad where the individual will apply for the H-1B visa.

How long does it take to obtain the H-1B visa? For an individual not currently in the H-1B visa classification it can take three to four months, although the time can be significantly reduced to about one month by the payment of an additional fee of $1000 for "Premium Processing."

Is there a quota or limitation on the issuance of H-1B visas? Yes. A maximum of 65,000 new H-1B visa petitions can be approved in a federal fiscal year (October 1 to September 30). Up to 1400 of these visas are reserved for Chileans, and up to 5400 are reserved for Singaporeans. In addition, there are 20,000 new H-1B visas set aside for individuals who have earned a master's or higher degree from a U.S. institution for an overall total of 85,000. Individuals hired by institutions of higher education, non-profit research organizations and government research organizations are exempt from this limitation.

What if the individual has held the J visa classification? In certain instances an individual who has held the J-1 or J-2 visa classification is not eligible to obtain the H-1B visa until he or she has been physically present in his or her country of citizenship or of last permanent residence for at least two years or that obligation has been waived by USCIS.

How long may an individual hold the H-1B visa classification? The H-1B classification may be approved for up to three years. It may be extended for up to six years in the aggregate; this includes H-1B employment with all employers in the U.S. After six years in this classification, an individual must be physically outside the U.S. for at least one year before regaining eligibility for the H-1B visa. (The six-year period can be extended for certain H-1B visa holders who are at a particular stage in the process of becoming a permanent resident of the U.S. based on employment.)

What are the employment restrictions on the H-1B visa classification?

1. The H-1B visa holder may be employed only by the employer whose petition has been filed on behalf of that individual and only in the position and at the salary described therein.  The authorization is both employer-specific and position-specific.
   
   
2. In the instance of an individual not currently in the H-1B visa classification, the petition must be approved by CIS before the H-1B employment may begin. Employment is authorized only during the dates approved.
   
   
3. If an individual already holds the H-1B visa classification, he or she may undertake a position with a new employer or a different position with the same employer only if a new H-1B petition is filed while the individual is in lawful status, the CIS Receipt Notice has been received by the employer and the individual begins the new position no earlier than the intended starting dates designated in both the certified LCA and the petition.
   
   
4. If an H-1B visa holder is to work temporarily at a different location than the one specified on the visa petition, there are special regulations governing per diem expenses, posting of notices and a fixed limit on the number of days H-1B visa holders can be placed somewhere other than the original place of intended employment.
   
   
5. An H-1B visa holder must be continuously employed; therefore, there can be no gap between working for different H-1B employers.
   
   
6. The employing unit may not place the individual in the H-1B visa classification on unpaid status (layoff), even due to a lack of funding or a lack of work.

May an H-1B visa holder receive honoraria or consulting fees from anyone other than the employer or start a business? An H-1B visa holder may receive only transportation and reasonable, incidental living expenses in order to give speeches, lectures, etc., elsewhere, provided that such activities are incidental to the employment as an H-1B visa holder and that he or she is not paid a stipend, honorarium or salary and does not derive any monetary or other material gain from these activities. An H-1B visa holder may not own and operate a private business.

What about taxes? An individual in the H-1B visa classification may be classified as a resident taxpayer for federal income tax purposes once he or she meets the "substantial presence test" for the particular tax year. This enables the individual to take the standard deduction and dependent family deductions, but worldwide income must be reported. A resident taxpayer is also subject to FICA withholding.

What about dependents? Spouses and dependent minor children are given the H-4 visa classification.  In this classification, they are not eligible to work in the U.S. under any circumstances. Of course, spouses and dependent children may be eligible for other visa classifications in their own right, such as student (F-1), temporary worker (H-1B) or exchange visitor (J-1).

What if the individual may intend to remain permanently in the U.S.? Although the H-1B is a nonimmigrant classification, it permits both the individual and the employer to simultaneously have nonimmigrant and immigrant intentions. The concept of "dual intent" allows an employer to have the intent to hire an alien temporarily and in the future employ him or her permanently if and when eligible for permanent resident status. The individual also may have the intent to assume a temporary status in the U.S. and depart at the end of that period of authorized stay unless he or she has become a permanent resident. This concept also facilitates re-entry to the U.S. if the H-1B visa holder travels abroad after applying for permanent residence.