Steps to Obtaining H-1B Visa Status

There are three steps involved in obtaining H-1B visa status: (1) a Labor Condition Application (LCA) that is filed with the U.S. Department of Labor (DOL); (2) an H-1B visa petition that is filed with the USCIS; and (3) in some cases, an H-1B visa application that requires the employee to appear in person at a U.S. consulate outside the United States.

H-1B “Cap” and Exemptions from the Cap

There is an annual limit or “cap” on the number of new foreign workers who can be granted H-1B status. This annual limit causes H-1B status to become unavailable for months at a time during a fiscal year, which poses serious problems for foreign students whose practical training authorization is expiring, and for graduates of foreign universities who are seeking H-1B visa status for the first time.

The annual limit does not apply to:

(1) people who already have H-1B visa status and are seeking extension of stay, or a visa to allow travel;

(2) people who already have H-1B status and are seeking to change employers;

(3) people seeking to work for an institution of higher education or a related or affiliated nonprofit entity, a nonprofit research organization, or a government research organization; and

(4) physicians seeking H-1B status to work in a medically underserved area.

H-1B visa status is initially granted for a period of three years. It can be extended for three more years, up to a maximum stay of six years.

Extensions beyond six years are available to employees who spend less than half their time in the U.S., or who remain outside the U.S. for more than one year. Extensions beyond six years are also available to an employee who has applied for permanent resident status before the end of his or her fifth year in H-1B visa status.

The spouse and unmarried minor children of an H-1B worker are admitted in H-4 status for the same duration of stay as the H-1B worker. They are not authorized to work in the United States.