To qualify for an H-1B visa a person must be in a specialty occupation, a fashion model of distinguished ability and merit, or a person helping the Department of Defense with cooperative research or a development/co-production project. A specialty occupation is defined as a theoretical and practical application of highly specialized knowledge and receiving a bachelor’s or higher degree in the specific specialty (or its equivalent). A fashion model must demonstrate that s/he is prominent in his/her field and that position which s/he will fill requires such prominence. A person working with the Department of Defense must be performing exceptional services in a position under a government-to-government agreement controlled by the Secretary of Defense. The applicant must be coming to the United States temporarily, but need not keep a foreign residence. Note that those working for the Department of Defense must have a foreign residence which the applicant does not intend to abandon.
The applicant’s employer (“petitioner”) must begin paying the applicant the wage stated on the petition within 30 days of the employee’s entry or 60 days from the employee’s application if the employee is already in the United States. The position the applicant will fill if granted the H-1B visa must be a permanent position that will be temporarily filled by the H-1B applicant. The petitioner must be a U.S. employer, i.e. one who hires employees to work within the U.S., has an employer-employee relationship in that the employer may hire, fire, or supervise the employee, and has an IRS Tax ID number. The petitioner must have supervisory control over the H-1B applicant, but does not need to pay his/her entire salary.
A maximum of 65,000 H-1B visas are granted each year. This number does not include an extra 20,000 visas granted to people who have earned a master’s or higher degree from a U.S. institution of higher education. If the H-1B is let go from his/her position s/he is no longer considered to be maintain lawful status upon such termination. An H-1B is initially approved for an entry period of up to 3 years; in total an H-1B can be admitted for 6 years, including extensions. H-1B visas granted to those working with the Department of Defense are for a maximum of 10 years; extensions are then granted in 2-year increments.
