H-1B Visa

Calendar Icon Updated January 15, 2019
Visas

The H-1B visa is for foreign professionals who have a specialty occupation and want to come to the United States to work. The visa allows American companies to recruit and employ these workers for a limited and specified amount of time. 

Because demand for these visas is always greater than the allotted quota, a lottery determines which applicants will receive a visa. Currently, there is an annual cap of 85,000 visas for those applying for the first time.

Even if you are a highly trained professional in a specialty occupation, attempting to navigate through H-1B visa process can be a bit intimidating. There are numerous forms to complete and you must meet certain deadlines to give yourself the best possible chance of securing a coveted H-1B visa.

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How to qualify for an H-1B visa

To qualify for an H-1B visa, you must meet the following criteria:

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  • You must already have a pre-existing employer/employee relationship with the U.S. employer petitioning for a visa on your behalf.
  • The job you want to perform in the United States must be classified as a specialty occupation. One of the determining criteria for a specialty occupation is if the position requires a bachelor’s degree or equivalent, or higher. You may be asked to demonstrate that a particular position is so complex or specialized that anyone asked to do the job normally holds a bachelor’s degree or higher.
  • To determine if a degree is needed or not for a specialty occupation, USCIS often times consults the Occupational Outlook Handbook. This comprehensive document provides detailed information on duties, pay, education and training and job outlooks for hundreds of occupations.
  • In some instances, if you do not hold at least a bachelor’s degree, you can qualify by holding a license or certification that authorizes you to work in the specialty occupation. Also, if you have an education or specialized training and experience that is equivalent to a bachelor’s degree, and you can demonstrate work experience in the specialty occupation, this may be a substitute as well. In general, three years of experience is considered equal to one year of college.
  • One strategy an employer may use is to have a professional credentials evaluation form review a foreign national’s diploma, degree or certification and issue a formal report as to what the equivalent U.S. degree or certificate would be. 
  • The job in your specialty occupation must match the field of study for which you studied and have a degree.
  • Your employer must pay you the actual or prevailing wage for your occupation. The U.S. Department of Labor keeps a database of prevailing wages based on geographic locations and occupations.
  • When an employer files a petition for a visa on your behalf, an H-1B visa number has to be available.

There are many broad job categories that apply to these criteria. While there is no clearly defined list of jobs that qualify as specialty occupations, based on past U.S. Customs and Immigration Services reports, many of these broad job categories include:

  • Accountants and Auditors
  • Architects
  • Biologists
  • Budget and Management Analysts
  • Chemists
  • Civil Engineers
  • College and University Educators
  • Database Administrators
  • Data Communication and Network Administrators
  • Dentists
  • Economists
  • Electrical and Electronic Engineers
  • Financial Analysts
  • Foreign Law Advisors
  • Graphic Designers and Artists
  • Healthcare workers
  • Industrial Engineers
  • IT / Computer professionals
     Lawyers
  • Management consultants
  • Market Research Analysts
  • Mechanical Engineers
  • Nurses
  • Psychologists
  • Physicians and Surgeons
  • Sales and Distribution Managers
  • Software Engineers
  • Statisticians
  • Surveyors
  • Systems Analysts and Programmers
  • Teachers, Primary and Secondary Schools
  • Technical Publications Writers
  • Therapists
  • University professors and teachers

Duration

H-1B visas are initially issued for three years. Extensions are available for up to an additional three years. Generally, the maximum stay under an H-1B visa is six years, however in some circumstances, further extensions may be granted, such as when a specialty worker is employed by the United States Department of Defense, in which case the maximum duration is 10 years.  

Workers who spend one year abroad after their initial six-year term of employment in the United States can reapply for another H-1B visa for another six-year term.

The H-1B Lottery and related program information

On April 1 of every year, the U.S. government starts accepting H-1B applications, six months in advance of the following fiscal year that begins on October 1. This makes April 1 an extremely important date. From those applications, the United States Citizenship and Immigration Service conducts a lottery and issues 65,000 general category visas and an additional 20,000 advanced degree visas. Due to overwhelming numbers of applications, in recent years USCIS has only considered applicants for the lottery if they applied during the first five days of the preceding April. This makes it critical to have documents ready to submit if you are an employer who wants to sponsor an H-1B employee.

Due to various trade agreements, workers from Chile and Singapore are exempt from the lottery as well. They can participate in a separate H-1B1 visa program that allows 1,400 workers from Chile and 5,400 workers from Singapore to come to the United States annually to work on a temporary basis.

Workers from Australia can also come to the United States to work on a temporary basis under the E-3 visa program. Up to 10,500 Australian nationals who want to work in specialty occupations in the U.S. may apply for an E-3 visa.

Due to other trade agreements, the Commonwealth of the Northern Mariana Islands and Guam are also exempt from the cap numbers.

H-1B workers who are sponsored by a U.S. college or university, a non-profit research institution or a government research entity are not included in the cap numbers.

Cap numbers fill up quickly so it is best to start planning as soon as possible if you know you will be applying for an H-1B visa that falls under the numerical cap.

H-1B visa holders can bring spouses and children under 21 years old into the country as dependents under the H4 visa category. Currently, those admitted to the United States under an H-4 visa are not allowed to work in the country.

It’s important to note that H-1B visa holders are required to pay Social Security and Medicare taxes and they are eligible to receive Social Security benefits after paying into the system for at least 10 years.

If an employer terminates the employment of an H-1B worker, the employer is required to offer to pay for the worker to return to their last residence in their home country. This does not apply if the H-1B worker resigns.

When H-1B employment comes to an end, USCIS must be notified by the employer so that the petition can be revoked. If the petition remains in effect, then the employer must continue to pay the H-1B worker’s wages.

Under some circumstances, an H-1B worker may change employers in the United States. Known as “portability” there are several guidelines that apply.

How to apply for an H-1B visa

 After an applicant wins a number in the annual lottery, their employer files a Form ETA 9035, Labor Condition Application (LCA) with the United States Department of Labor. The LCA will state that the employer intends to pay the H-1B worker a prevailing wage and that the H-1B worker’s employment will not affect other similar U.S. workers.

After the LCA has been approved, the employer files a Petition for a Nonimmigrant Worker, Form I-129. This is the actual request for a worker to receive an H-1B visa. As of 2015, the cost to file this petition is $325, payable to the USCIS.

Premium processing is also available for H-1B visa processing with approval decisions that can be made in 15 business days by filing a Request for Premium Processing, Form I-907. However, there is an additional cost of $1,225 for this service.

After the Form I-129 has been approved, the worker may use this document to apply for an H-1B visa that will grant them entry into the United States. At a port of entry, the worker will get a Form I-94 granting them permission to enter the country and spells out details of their stay.

One of the best things about applying for an H-1B visa is that it is considered a dual intent visa. This means that a person can also simultaneously pursue obtaining a U.S. Green Card and their H-1B status will not be revoked.

For more information, view our Ultimate Guide to Visas, visit our website, or go to the US. Citizenship and Immigration Services page for H-1B Visas.

Eligibility Team

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