The H-1B category is a nonimmigrant classification granted by U.S. Citizenship and Immigration Services (USCIS) to persons coming to the United States to work in a specialty occupation. Specialty occupation has been interpreted to mean a professional position or one that requires a minimum of a U.S. bachelor’s degree or equivalent.
Although some professional positions are defined by statute (such as Accountant or Attorney), other positions are interpreted by USCIS and the administrative and Federal courts. There is not always a clear definition of specialty occupation and an Attorney is needed to research each position and present legal arguments in support of the offered position so that it is classified by USCIS as a specialty occupation.
An H-1B petition is valid for up to six years. It may be granted for an initial 3 year period with a subsequent extension of 3 additional years. If a labor certification has been filed and has been pending for more than one year (typically as a result of a backlog in the visa numbers), the H-1B beneficiary can extend his/her stay beyond 6 years.
If the foreign national does not have a college degree, it may be possible to obtain certification that the foreign national has the equivalent of a college degree based on his or her job experience or combination of studies and work experience.
When the H-1B visa petition is approved by USCIS and the person obtains a change of status by USCIS or has the H-1B visa affixed to the passport, the foreign national is authorized to work only for the U.S. Employer. The spouse and unmarried children under 21 are granted H-4 status which allows them to accompany the H-1B professional in the United States and attend school. However, it does not permit them to work unless they first obtain their own H-1B or other employment based visa.