H1-B Visa

The H-1B Visa
Under the United States Immigration and Nationality Act, particularly Sec. 101(a)(15)(H), the H1-B visa is a type of non-immigrant visa allowing entry into the United States. The purpose for such entry is the temporary employment of foreign workers to perform specialty occupations while in the United States.

Since this essentially a work visa, any change in the employment status of the individual granted the visa needs to be properly reflected in the visa status of the visa holder. If the visa holder employee is either terminated from employment by the sponsoring employer, there is a need to change the visa altogether into another non-immigrant visa or be required to leave the United States.

By definition, a “specialty occupation” is work that requires theoretical and practical application of a highly specialized area of knowledge such as but not limited to any of the following:

• Architecture or Engineering;
• Mathematics or Physical Sciences;
• Social Sciences;
• Biotechnology, medicine and health;
• Law or Education;
• Accounting or Business Specialization;
• Theology or the Arts;

In order to qualify, these individuals with specialized knowledge must at least have a bachelor’s degree or equivalent. The exception to the rule is if the individual is of “distinguished merit and abilty”, which includes models, entertainers or other talent associated occupations. If the occupation requires any form of public practice, then the individual applicant must have obtained the minimum bachelor’s degree and state certification allowing practice of the profession.

The H-1B work visa is strictly limited to the employment of the sponsoring employer. Its term is for three (3) years with an allowed extension of another three (3) years. The following are exceptions to the maximum length of stay:

• One (1) year extension allowed if a labor certification application has been filed and is pending for at least three hundred sixty five (365) days;
• Three (3) year extension if an I-140 Immigrant Petition has been approved for the employee;

Another aspect of the H-1B visa is its transferability or portability. Under the visa guidelines, there is no requirement that the individual visa holder remain for any period in the same job that the visa was applied for. When a new employer is obtained, there is a need though for the new employer to sponsor the visa holder for another H-1B visa in order to retain the employment of the visa holder.

Since this is employment, there are tax implications for H-1B employees. There tax category is dependent on their consideration either as a non-resident alien or a resident alien. For non-resident aliens, only income earned in the United States is subject to tax. On the other hand, a resident alien’s income both inside and outside the United States is subject to taxation.

For more information regarding the application for a H-1B visa to the United States, do consult with the immigration lawyers at the Law Firm of David A. Lluis.