Overview

Every year beginning April 1, US Citizenship and Immigration Services (USCIS) starts accepting applications for 65,000 H-1B visas for next fiscal. However, for US master degree holders or higher, there is a separate quota of 20,000, taking the total H-1B quota to 85,000.

The H-1B category is a lawful and most widely used method to bring foreign-born professionals for employment to the United States.

How long can you stay?

An individual may work in H-1B status for a maximum of six years. However, a petition will not be granted for more than three years. An extension of stay can be requested if an individual is in H-1B status already and he or she is eligible for a longer period of employment.

An exception to maximum length of stay applies in certain circumstances:

1.  one-year extensions if a labor certification application has been filed and is pending for at least 365 days; and

2.  three-year extensions if an I-140 Immigrant Petition has been approved.

Qualification Required

The person applying for H-1B visa must possess a degree equivalent to US bachelor's degree. A person may also qualify for an H-1B visa through a combination of education or specialised training. For example three years of specialised experience is considered equal to one year of college education. 

An applicant can also have a US bachelor's or a higher degree from an accredited university. H-1B occupations include architecture, engineering, mathematics, physical sciences, social sciences, biotechnology, medicine and health, education, law, accounting, business specialties, theology and arts.

How to Apply?

The H-1B Visa is applied only by employer on behalf of an employee. You cannot file H1B for yourself.

The employer needs to file a Labor Condition Application (LCA) with the US Department of Labor (DOL). This application must state the position and salary while hiring a foreign worker. Other details related to wage, working conditions, labor conditions needs to be stated. 

Once the application gets approved, the employer needs to submit an I-129 Petition for non-immigrant worker, along with related forms and supporting documents to USCIS. 

These forms primarily justify that job for which the foreign worker is hired is a "specialty occupation" and requires a highly specialised knowledge. This is as H-1B visa programme is aimed to employ foreign workers in specialty occupations that require theoretical or technical expertise in a specialised field.

If the H1B Employee does not have any job while in USA?

Once an H-1B visa holder is fired or laid off or the position terminated, his/her H-1B status ends immediately. Hence, the employee must leave the US or obtain any other status to stay within the country. 

In many cases for a change of status the person can apply for the B-2 Tourist Visa. This will let the worker to remain in status in the US as a visitor. 

In case the job is terminated before the approved stay, the employer of the H-1B visa holder is responsible for paying for the worker's return transportation to his/her foreign residence.

Dependents /Spouse Status

H-1B visa holders can bring their immediate family members (spouse and children under 21) to US under the H4 Visa category as dependents. 

However, H-1B visa holders' spouse coming on H-4 (dependent visa) cannot work in the country. An H4 Visa holder can remain in US as long as the H-1B visa holder's status remains legal. An H4 visa holder, however, can attend school, obtain a driver's license and open a bank account.

Income tax

The taxation of income for H-1B employees depends on their tax residency: whether they are categorized as Resident Aliens or Non Resident Aliens for tax purposes. A non resident alien for tax purposes is only taxed on income from the US. A resident alien for tax purposes is taxed on income both from inside, and outside, the US.

The tax residency can be determined based on the "substantial presence test".

If the substantial presence test indicates that the H-1B visa holder is a resident, then income taxation is like any other US person and may be filed using Form 1040 and the necessary schedules. Otherwise the visa holder must file as a non-resident alien using tax form 1040NR or 1040NR-EZ; he or she may claim benefit from Tax Treaties if they exist between the US and the visa holder's country of citizenship.

Persons who are in their first year within the US may choose to be considered a resident for taxation purposes for the entire year, and must pay taxes on their worldwide income for that year. This "First Year Choice" can only be made once in a person's lifetime.

A spouse, regardless of visa status, must have a valid ITIN or Social Security Number in order to be included on a joint tax return with the H-1B holder.

You can refer to the USCIS guidelines for taxation here IRS Publication 519, U.S. Tax Guide for Aliens.

Is it possible to Work for multiple employers?

Yes, it is possible. If you plan to work for multiple employers (either full time or part time), each employer must file separate H1B petition.

But remember that H1 visa holders can NOT work as self-employed or freelancers and do contract type of work in free time.

Can H1B person buy house or shares?

H1 visa holders can buy a house or any other real estate property in the USA. They can also invest money in stocks, mutual funds, bonds etc. 

Green card

H-1B visa holders may be sponsored for their green cards by their employers through an Application for Alien Labor Certification, filed with the U.S. Department of Labor. The sponsorship process generally takes several years, and for much of that time the H-1B visa holder cannot change jobs to remain eligible for the green card. This creates an element of enforced loyalty to an employer by an H-1B visa holder. Employers benefit from this enforced loyalty because it reduces the risk that the H-1B employee might leave the job and go work for a competitor. This probably is the only drawback of H1B visa.

Caution

You must verify the credentials of your H1B sponsor before leaving your current job or even pay any kind of deposit money. Good companies/consultants do not take any kind of deposit money from their employees. In the recent past, there have been instances where some consultants have duped in some innocent people for their money in lieu of sponsoring their H1B visas. You can find the list of companies which are banned from sponsoring H1B visas here.