What is an H-1B Visa?
H-1B Visa allows U.S. employers to employ foreign specialty professionals. Specialty occupations are defined as requiring highly specialized knowledge in the fields of STEM, social sciences, liberal arts, business, accounting, law, and other fields. The H1B Visa is under the Immigration and Nationality Act which has protections in place for American workers and nonimmigrant temporary workers. Employers who hire foreign individuals with H-1B Visas must prove that they are paying equal wages compared to a U.S. worker in a similar position with similar experience. This is put in place to ensure U.S. employers are not undercutting foreign workers and not displacing equally qualified U.S. workers with less expensive labor.
The H-1B visa is a nonimmigrant visa that allows U.S. employers to temporarily employ foreign workers in specialty occupations. A specialty occupation is one that requires the application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty or its equivalent.
Examples of specialty occupations include:
- Computer programmers
- Teachers in primary/secondary schools
Note: Foreign nationals seeking employment cannot apply for the H-1B Visa themselves, they must find a sponsor employer who will petition for the visa on their behalf. To qualify for an H-1B visa, an individual must have a job offer from a U.S. employer and a bachelor’s degree or higher in the specific specialty or its equivalent. The employer must also demonstrate that they are unable to find a qualified U.S. worker for the position, and must pay the foreign worker the same wage as they would pay a U.S. worker for the same position.
The H-1B visa is a temporary visa, and it is usually valid for up to three years, with the possibility of extensions for up to six years. It is important to note that the H-1B visa process is highly regulated and it can be complex, and it may require the assistance of an attorney who is experienced in immigration law.
Lottery for H-1B Visas
Every fiscal year, there are a limited number of H-1B Visas available for foreign workers. That number is set to 65,000 overall visas and another 20,000 for foreign nationals with master’s degrees or higher from U.S. schools. Cap-exempt entities can hire foreign nationals with no limit and they include government research organizations, non-profits associated with universities, and universities. Additionally, Chile and Singapore have special trade agreements that allocate 1,400 and 5,400 H-1B1 visas respectively.
Who Qualifies for H-1B Visa?
To qualify for an H-1B visa, an individual must:
- Have a job offer from a U.S. employer in a specialty occupation, which is defined as a profession that requires the application of a body of highly specialized knowledge and the attainment of a bachelor’s degree or higher in the specific specialty, or its equivalent.
- Possess the necessary qualifications for the specialty occupation, including education, training, and/or experience.
- Possess a bachelor’s degree or higher in the specific specialty, or its equivalent.
- The U.S. employer must demonstrate that they are unable to find a qualified U.S. worker for the position, and must pay the foreign worker the same wage as they would pay a U.S. worker for the same position.
- The U.S. employer must file a Labor Condition Application (LCA) with the Department of Labor and obtain certification before filing a petition with the U.S. Citizenship and Immigration Services (USCIS).
- Special rules apply for H-1B1 (Chile, Singapore) and E-3 (Australia) visas.
It’s important to note that the above requirements are general in nature and for specific cases, it’s always a good idea to check the U.S. government’s website for detailed information and instructions on the H-1B visa qualifications, and to consult with a qualified immigration attorney.
H-1B Application Process
The process of applying for an H-1B visa can be complex and may require the assistance of an attorney who is experienced in immigration law. However, in general, the following steps may be involved in the application process:
- Obtain a job offer from a U.S. employer: The individual must first obtain a job offer from a U.S. employer in a specialty occupation that requires the application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent.
- File a Labor Condition Application (LCA) with the Department of Labor: The U.S. employer must file a LCA with the Department of Labor and obtain certification before filing a petition with the U.S. Citizenship and Immigration Services (USCIS).
- Gather required documentation: The individual must provide all the required documents such as valid passport, completed and signed form I-129, Petition for Nonimmigrant Worker, a recent photograph, and a certification letter from the U.S. Labor Department.
- File a petition with the U.S. Citizenship and Immigration Services (USCIS): After the LCA is certified, the U.S. employer must file a petition on behalf of the individual with the USCIS.
- Wait for the decision: After the petition is filed, the individual must wait for a decision on their application. The processing time will vary depending on the individual’s circumstances, the specific visa type and the workload of the USCIS.
- Schedule an interview: If the petition is approved, the individual must schedule an interview at the nearest U.S. consulate or embassy.
- Pay the visa application fee: A non-refundable application fee must be paid at the time of the interview.
- Attend the interview: The individual must attend the sche
What is the H-1B Visa Interview Process?
The interview process for an H-1B visa is similar to the interview process for other nonimmigrant visas. The individual will be required to attend an in-person interview at the nearest U.S. consulate or embassy. During the interview, the individual will be required to present all required documents and answer any questions related to their application.
- The consular officer will check the individual’s passport, visa application form, and other required documents to ensure that they are complete and accurate.
- The consular officer will ask the individual questions about their background, job offer, qualifications, and the specialty occupation they are seeking to work in.
- The consular officer will verify the individual’s ties to their home country, and will assess whether the individual has a credible plan to return home at the end of their trip.
- The consular officer will also verify the validity of the job offer, including the U.S. employer’s ability to pay the offered wage, and whether the Labor Condition Application (LCA) was certified.
- The consular officer may also conduct additional security checks if necessary.
What are the Required Documents for H-1B Visa?
The required documents for an H-1B visa will vary depending on the individual’s circumstances. However, in general, the following documents may be required as part of the application:
- A valid passport
- A completed and signed Form I-129, Petition for Nonimmigrant Worker
- A recent photograph of the applicant
- A Labor Condition Application (LCA) certification from the U.S. Department of Labor
- A job offer letter from the U.S. employer, including the job title, duties, and salary
- Educational and professional qualifications, such as diplomas, degrees, and transcripts
- A resume or curriculum vitae
What is the H-1B Visa Fee?
The visa application fee for an H-1B visa is $460 as of 2021. In addition to the visa application fee, there are also several other fees associated with the H-1B visa process, including:
- $500 Fraud Prevention and Detection fee
- $4,000 for employers with 25 or fewer full-time employees or $4,500 for employers with 26 or more full-time employees. This fee is called the Public Law 114-113 fee or the “ACWIA fee”
- $750 or $1,500 for the optional premium processing fee, which allows the petitioner to expedite the processing of the H-1B visa petition
What is the H-1B Visa Processing Time?
The processing time for an H-1B visa will vary depending on the individual’s circumstances, the specific visa type, and the workload of the U.S. Citizenship and Immigration Services (USCIS).
Normally, the processing time for H-1B visa can take several months, and it can be expedited with the premium processing service, which guarantees the processing time to be 15 calendar days. However, the premium processing service is not available all the time and the government can suspend it for certain period of time.
H-1B Visa Length of Stay
The typical duration that H-1B Visas grant is three years with a possible extension to six years. There are certain extensions which are listed below:
- Individuals who have submitted an I-140 Immigrant Petition prior to their fifth year of being a H-1B Visa holder can renew their visa in one year increments until they are denied or approved for a green card
- If an individual has already been approved for their I-140 Immigrant Petition but has not reached their priority date yet, they may renew their H-1B for an additional three years until they become a permanent resident
- The maximum allotted stay under a H-1B Visa for work related to the U.S. Department of Defense is ten years
Transitioning from H-1B to a Green Card
Although H-1B Visas are meant for temporary nonimmigrant employment in the United States, it is recognized by the U.S. government as a dual intent visa. This means that H-1B Visa holders may apply for a green card while in the nonimmigrant status and they do not need to maintain a foreign address. Green card applications may take years to process so H-1B holders may need to reapply for extensions on their temporary employment authorization while waiting to become a permanent resident.
H-1B Visa Frequently Asked Questions
- How long is an H-1B visa valid for?
An H-1B visa is usually valid for up to three years, with the possibility of extensions for up to six years. However, the maximum amount of time an individual can stay on an H-1B is 6 years
- Can I bring my family with me on an H-1B visa?
An H-1B visa holder may bring their spouse and children (under 21 years of age) with them to the United States on an H-4 visa. Dependents on H-4 visa are not allowed to work in the United States
- Can I change my status from an H-1B visa to a different visa category?
It is possible to change your status from an H-1B visa to a different visa category if you meet the requirements and qualifications for the new visa category, and if the USCIS approves the change of status.
- Can I apply for a green card while on an H-1B visa?
Yes, it is possible to apply for a green card while on an H-1B visa.
- Can I extend my H-1B visa?
It is possible to extend the stay of an H-1B visa if the individual’s circumstances have not changed, and if the USCIS approves the extension.
- Is there a cap on the number of H-1B visas that can be issued each year?
Yes, there is an annual cap on the number of H-1B visas that can be issued each year. The cap is set by the U.S. government and it is currently set at 65,000 for regular H-1B visa and 20,000 for master’s degree exemptions.