Significantly, once an employer has brought a foreign worker to the U.S. on the basis of an H-1B visa, if the company should dismiss that worker before the expiration of the visa, the company is responsible for any ticket costs that the worker incurs travelling back to his/her place of last foreign residence. This provision is dependent upon dismissal and is not relevant if a worker chooses to resign.

If a foreign worker in H-1B status resigns or is dismissed from the sponsoring employer, the worker must either apply for and be granted a change of status to another non-immigrant status; find another employer (subject to application for change of visa); or leave the United States.

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 H-1B 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 H-1B status for a green card application. The H-1b status has the advantage of applying for citizenship after 5 years of Lawful Permanent Residence. This visa is advantageous for any highly specialized employees whose long term plans include permanent US residence.

Aside from the requirement that the position be a specialty occupation, the employer must first file a Labor Condition Application (LCA), Form ETA 9035 or Form ETA 9035E, with the Department of Labor (DOL). An employer filed LCA attests that the H1B visa worker is being paid the prevailing wage for the work being performed, and that employment of the foreign worker will not adversely affect the working conditions of similarly employed U.S. workers.

Occupations that qualify for H-1B visas typically require highly specialized knowledge in a field of human endeavor including, but not limited to: IT, Architecture, Engineering, Mathematics, Physical Scientific Research, Social Science, Biotechnology, HealthCare/Medicine, Education, Law, Accounting, Business, Theology, Arts, Computing, Finance, Accounting, Banking, Marketing, Sales, Recruiting, and Telecommunication.

Under H-1B visa requirements, the company, organization or employer is the petitioner, and must file the H-1B petition in order to hire the employee, while the foreign worker is the beneficiary. Normally, foreign individuals cannot apply for an H-1B visa on their own behalf which will permit them to work in the US. The number of H-1B visas issued each year is subject to an annual Cap.

The number of new H-1B non-immigrant visas issued each year is subject to a cap. The maximum number of visas is capped at 65,000 per fiscal year; counted from October 1 to September 30.
Of these, 6,800 are reserved for Chile and Singapore under certain Free Trade Agreements between these countries and the United States. An additional 20,000 are available specifically to those individuals who have received a Master’s degree or higher from a U.S. institution of higher education. If there are any visa numbers that are unused under the Chile/Singapore quota, they will be used for candidates that fall under the regular cap.

The H-1B visa is a non-immigrant visa designed to allow U.S. employers to recruit and employ foreign professionals in specialty occupations within the USA for a specified period of time.

The H-1B program provides the opportunity for foreign workers, in specialty occupations, to legally live and work in the US for a total of 6 consecutive years.

It entitles their spouse and children (under the age of 21) to accompany them and legally live in the USA on H-4 visas. However, if the spouse and children plan to work they must secure their own work visa and work authorization.

H-1B visa applicants may also be required to meet certain health and character requirements.

Foreign workers must possess at least a bachelor’s degree or its equivalent (this requirement can usually be met by having a 3-year degree and 3 years of relevant post-graduate experience).

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. The H-1B visa can also “recapture” time spent abroad while in H-1B status. If an alien opts to “recapture” time abroad, then periods of time spent not in the US will NOT count against the 6 year limit of the H-1B visa.