U.S. immigration law allows a certain number of foreign nationals to enter the U.S. each year for temporary employment. Qualified individuals may apply for temporary worker visas (H-1B visas), which will authorize them to work for a certain length of time in the U.S.
The temporary worker must usually have a U.S.-based employer to sponsor them and verify that they’ll be traveling to the country only for employment.
What Is a Temporary Visa? What Is an H-1B Visa Work Permit?
A temporary visa is also referred to as a nonimmigrant visa. A temporary visa is a type of visa issued to those seeking to visit the U.S. for a limited amount of time. Immigrants applying for nonimmigrant status must demonstrate that they have no intention to stay or live permanently in the United States.
Nonimmigrant visa categories cover nonimmigrant workers, as well as nonimmigrant exchange students. These two categories cover the most significant number of nonimmigrant visas issued each year. Generally speaking, nonimmigrant workers or exchange students must be petitioned by a sponsor who will aid them in obtaining their temporary visas. A sponsor for a nonimmigrant worker would most likely be their employer. For nonimmigrant students, their sponsor is typically the educational institution where they are receiving their education.
Some examples of other nonimmigrant visas categories include:
- Representatives of foreign governments;
- Representatives of the foreign press;
- Distinct types of temporary religious workers;
- For Mexico and Canada only, some experts under North American Free Trade Agreement (“NAFTA”) treaty provisions;
- Investors and traders as designated under NAFTA treaty provisions;
- Immigrants receiving training that is not available in their home country;
- Immigrants who will be providing information to federal and state authorities for criminal
- investigation purposes; and
- Internationally recognized performers, athletes, and their support staff.
What connects all of these categories is that the nonimmigrant is visiting the U.S. for a specific purpose and a set amount of time. Those who hope to visit the United States for leisure or immigrate permanently must apply under different immigration categories.
An H-1B visa is a work permit allowing a nonimmigrant to work for an employer in the United States. This is temporary and happens in a specialty occupation. A person may hold an H-1B visa for a maximum of six years. These six years can be issued in increments of three years at a time; so, either six years at once, or three years and then another three years later.
Nevertheless, there are specific conditions in which an employee may hold an H-1B visa for a period lasting beyond six years.
H-1B visas are limited in quantity. Approximately 85,000 H-1B visas are allocated per year, and many are limited to those who have received an advanced degree from a U.S college or university.
Who Qualifies as a Temporary Worker?
For immigration and H-1B visa purposes, temporary workers may include:
- Individuals with training in a specialty field requiring completion of higher education, such as educators, medical experts, health workers, engineering and math professionals, and legal specialists
- Certain non-medical or non-academic trainees
- Certain seasonal workers (such as agricultural employees)
- Individuals with “extraordinary ability” in fields such as the arts and sciences, business, athletics, motion picture/television, and education
- Some athletes
The temporary worker needs to have a U.S. employer who will sponsor them during the application process. The employer will need to fill out various forms and submit some documents to the U.S. Department of Labor and the immigration department.
To qualify for a temporary work visa, the worker must demonstrate that they have ties outside the U.S. and have no intention of abandoning such ties to remain permanently in the U.S. They must also meet other requirements such as a criminal background check and a basic medical examination.
What Are the General Requirements For an H-1B Visa? What Is Considered to Be a Specialty Occupation?
To obtain a specialty occupation H-1B visa, the employee must possess a bachelor’s degree. Alternatively, they may have comparable and equivalent experience to a bachelor’s degree in their field. This would probably consist of education, training, or experience in the specialty equal to completing such a degree. The employee could also recognize expertise in their specialty through progressively responsible positions directly related to their specialty.
Further, the employee must hold an unrestricted state license, registration, or certification authorizing them to practice the specialty occupation fully. The state of planned employment must issue such a license.
The individual or company employing an H-1B applicant must obtain a labor condition application (LCA) from the U.S. Department of Labor. This must be obtained before filing the H-1B petition with the USCIS.
Regarding applying for an H-1B visa, specialty occupations require theoretical and practical application of a body of specialized knowledge and at least a bachelor’s degree or an equivalent. Some examples of what constitutes specialty occupations are:
- Occupations that have a minimum entry requirement of a bachelor’s or higher degree, or its equivalent, as previously discussed;
- Occupations in which the degree requirement for the job is industry-specific, or the job is so complex or unique that it can be performed only by an individual that holds that degree; and
- The specific duties associated with the occupation are so specialized and complex that the knowledge required to perform the duties is not usually associated with self-training.
The following is a broad categorization of occupations generally approved as qualifying for an H-1B visa:
- Accounting and auditing;
- Architects and civil engineers;
- Biologists, Chemists, and other scientists;
- College and university educators;
- Data communication and network administrators, as well as database admin;
- Electrical and electronic engineers;
- Investment banking;
- Industrial and mechanical engineers;
- Doctors and surgeons;
- Primary and secondary school teachers; and
These are just a few examples, and this is not an inclusive list. Many other broad fields may be considered specialty occupations in qualifying for an H-1B visa. Complete information can be found on the USCIS website.
How Long Does a Temporary Work Visa Usually Last?
H-1B visas are usually good for up to 6 years. An extension may be available in some instances. After the visa has expired, the worker may be required to reside outside the U.S. for a set time before they can qualify for readmission as a temporary worker.
Lastly, you should note that getting a temporary worker visa doesn’t automatically guarantee admission into the U.S. The applicant still needs to satisfy all the country entry requirements (such as a valid travel passport, criminal record clearance, etc.)
What Else Should I Know About the H-1B Visa?
Before applying for an H-1B visa, you must have a sponsoring U.S. employer. The employer will apply first to the Department of Labor and then to the United States Citizenship and Immigration Services (“USCIS”). If the employer’s petition with the USCIS is approved, you may proceed with applying for your H-1B visa.
Generally speaking, the H-1B is valid for six years and can be divided into two three-year increments. Depending on specific circumstances, the visa may be extended beyond six years. You must file for a visa extension with the United States Citizenship and Immigration Services (USCIS), preferably 45 days before your visa expires.
Suppose you have filed either a Labor Certification application or an I-140 petition 365 days before the six-year limitation, and the LC or I-140 has not been denied. In that case, you may extend your status every year beyond the six-year limitation.
Do I Need a Lawyer for Assistance With Temporary Worker Immigration Laws?
If you or a loved one needs legal assistance with a temporary worker visa, you should immediately contact a qualified immigration lawyer. Your lawyer will be able to help you throughout the application process to ensure that all the legal requirements are being met.
Many temporary work visas are denied due to mistakes or deadline violations, but working with a lawyer can help you avoid such errors.