H-1B Visa for Specialty Occupations (Professions)

The H-1B petitioner is further required to make a statement in connection with the petition that it will pay the reasonable expenses of the H-1B worker’s return transportation abroad in the event of dismissal before the end of the period of authorized stay. In most cases, the petitioner is also required to pay $1,000 in addition to the regular filing fee. Those cases are as follows:

  • on an initial grant of H-1B status;
  • on an extension of H-1B stay, unless the alien's stay had earlier been extended on the petition of that employer; or
  • on a petition for change of employers for an alien already in H-1B status.

A petition may be filed and approved as long as six months before the services or training are to begin. If it is approved before the starting date, the petition's validity will reflect the actual period sought. The petitioner must file an amended or new petition, with fee, whenever there are material changes in the terms or conditions of employment or training, or in the beneficiary's eligibility, as specified in the original approved petition. The initial approval period for the H-1B is three years with one extension of three years. The petition for extension is only permitted while the beneficiary is in the United States and by the petitioner's request to extend the beneficiary's stay. At the termination of the six-year period, the H-1B worker must remain abroad for an aggregate period of one year in order to obtain a new nonimmigrant classification.

In October, 2000, Congress passed The American Competitiveness in the Twenty-first Century Act of 2000 (AC21). Under AC21, certain aliens who have previously been in H-1B status may begin employment with a new H-1B employer upon the filing of an H-1B petition by the new employer. What this means is that the H-1B employee need not wait for INS approval of the new H-1B petition before beginning work for the new employer. This increased ''portability'' has allowed businesses to fill vacancies with H-1B employees without having to wait months for INS to approve H-1B petitions.

Immigration Service regulations provide for "dual intent" for H-1B beneficiaries. This means that the H-1B worker may legitimately come to the United States for a temporary period as an H-1B nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States. H-1B applicants for adjustment and their family dependents may continue to maintain their nonimmigrant status during the processing of their permanent residency and may leave and return to the United States in such status, instead of securing advance parole, without abandoning their adjustment applications. Even if they do get advance parole and are paroled into the United States, they may continue to work for the H-1B employer in their former status and obtain extension of that status.

Spouses and children of H-1B nonimmigrants are admitted in H-4 status. These spouses and children may not be employed in the U.S. unless they are eligible independently for employment authorization.