H-1B VISA

Individuals can not apply for an H-1B visa to allow them to work in the US. An employer must petition for entry of the employee. H-1B visas are subject to annual numerical limits. New H1B legislation requires certain employers, called H-1B dependent employers' to advertise positions in the USA before petitioning to employ H-1B workers for those positions. H-1B dependent employers are defined as those having more than 15% of their employees in H-1B status (for firms with over 50 employees – small firms are allowed a higher percentage of H1B employees before becoming 'dependent'). In addition all new H-1B petitions and 1st extensions of H1B's now require a fee (in addition to the usual filing fees) of US$1,000 to be paid, which will be used to fund a training program for resident US workers.

The actual size of the H-1B program is difficult to gauge due to exemptions from the 65,000-person quota limit. On October 1, 2003, the allotment of H-1B visas provided annually by Congress dropped from 195,000 to 65,000. On October 1, 2004 United States Citizenship and Immigration Services in the Department of Homeland Security (USCIS) announced that it had received enough applications to meet the 2004 cap or limit.

Not every H-1B applicant is subject to the general cap. Visas will still be available for applicants filing for amendments, extensions, and transfers unless they are transferring from an exempt employer or exempt position and were not counted towards the cap previously.

The cap also does not apply to applicants filing H-1B visas through institutions of higher education or their related or nonprofit entities as well as nonprofit research organizations and government research organizations.

USCIS policy is to hold a random drawing to select the exact number of petitions from the day’s receipts needed to meet the cap. USCIS announced that for FY2008, if it receives too many applications in the first two days, all applications received in those two days will be considered together in a random selection process.

The initial visa may be granted for up to three years. It may then be extended, in the first instance for up to two further years, and eventually for one further year, to a maximum of six years. Those wishing to remain in the US for more than six years may, while still in the US on an H1B visa, apply for permanent residence (the "green card"): if such employees do not gain permanent residence, when the six year period runs out, they must live outside the US for at least one year before an application is made for them to enter.