The H-1B is a non-immigrant classification established by the Immigration Act of 1990 (IMMACT 90) used by an alien who will be employed temporarily in a specialty occupation.

A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor's degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.

H-1B status requires a sponsoring U.S. employer. The employer must file a labor condition application (LCA) with the Department of Labor attesting to several items, including payment of prevailing wages for the position, and the working conditions offered. The employer must then file the certified LCA with a Form I-129 petition (plus accompanying fee). On the USCIS petition approval, the alien may apply for the H-1B visa, admission, or a change of non-immigrant status.

For additional information on employer's filing needs, please visit the Department of Labor's Foreign Labor Certification page.

There is an annual cap on the number of individuals who can apply for H-1B category. H-1B applications can be submitted six months before the fiscal year start date of October 1. The 65,000 cap was reached for fiscal year 2008 on April 2, 2007.

The H-1B Visa Reform Act of 2004, which took effect on May 5, 2005, changed the H-1B filing procedures. The H-1B Visa Reform Act of 2004 also makes available 20,000 new H-1B visas for foreign workers with a Master's or higher level degree from a U.S. academic institution. The 20,000 cap for Advanced Degree applications for fiscal year 2008 was reached April 30, 2007.

With the H1-B cap being reached early each year, students who graduate in May and participate in optional practical training for a year after graduation face a "gap" between their OPT end date and an H1-B start date of October 1. This happens less for students graduating in December.

Under current law, an alien can be in H-1B status for a maximum period of six years at a time. After that time an alien must remain outside the United States for one year before another H-1B petition can be approved. Certain aliens working on Defense Department projects may remain in H-1B status for 10 years. In addition, certain aliens may obtain an extension of H-1B status beyond the 6-year maximum period, when:

• 365 days or more have passed since the filing of any application for labor certification, Form ETA 750, that is required or used by the alien to obtain status as an EB immigrant, or

• 365 days or more have passed since the filing of an EB immigrant petition.

This information is from the United States Citizenship and Immigration Services website www.uscis.gov under the Employer Information link.

Another excellent source of information on H1-B basics is the website of Siskind Susser Bland Immigration Lawyers www.visalaw.com