First time H1B Work Visa FAQ
Updated on 02/22/2023
1. What is H1B work visa?
The H1B work visa is a nonimmigrant visa category that allows U.S. employers to employ foreign workers to work in a “specialty occupation” that require at least a bachelor’s degree or the equivalent.
2. How long can I work as an H-1B worker?
You can work as an H-1B worker for a maximum of 6 years, with some exceptions. Initial H-1B is granted for a period up to 3 years, and then can be extended for another 3 years. After using up 6 years of H-1B period, you can leave the U.S. and physically stay outside the U.S. for at least 1 year then reapply for H-1B for another period up to 6 years.
3. What are the requirements of H1B work visa?
To qualify for an H1B work visa, two requirements must be met.
The first requirement is that the proffered H-1B job must be a job that requires theoretical and practical application of a body of highly specialized knowledge; and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.
The second requirement is that the H-1B candidate must meet one of the followings:
- Hold a U.S. bachelor’s or higher degree required by the specialty occupation from an accredited college or university;
- Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree required by the specialty occupation from an accredited college or university;
- Hold an unrestricted state license, registration, or certification that authorizes you to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or
- Have education, specialized training, and/or progressively responsible experience that is equivalent to the completion of a U.S. bachelor’s or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
4. Who can sponsor an H1B work visa?
Any U.S. employer can sponsor an H1B work visa as long as it has an EIN tax number assigned by IRS.
5. I don't have any U.S. degree, can I apply for H1B?
Yes if you meet one of eligibility criteria as described above in item 3.
6. I don't have a bachelor's degree, am I qualified for a H1B visa?
Yes if you meet one of eligibility criteria as described above in item 3. Generally, 3 years of progressively responsible experience and/or specialized training is equivalent to 1 year college level education. Thus, if you have 12 years of progressively responsible experience/specialized training or you have a 2-year associate degree plus 6 years of progressively responsible experience/specialized training, you are still qualified for a H1B visa. However, you must provide reliable credential evaluation and/or expert opinion letters.
7. How to apply for H1B work visa?
If you apply for H1B work visa for the first time, you need to identify whether the U.S. employer (Petitioner) that will sponsor the H1B visa is a H1B cap exempt employer or not. H1B cap exempt employers are eligible to file H-1B petitions with U.S. Citizenship and Immigration Services (USCIS) for foreign workers (Beneficiary) at any time and no need to go through H1B lottery.
H1B cap exempt employers are entities that fall into one of the followings:
- Institutions of higher education
- Nonprofit entities related to or affiliated with an institution of higher education
- Nonprofit research organizations
- Governmental research organizations
Here, “Higher education institution” must
- Be a public or non-profit institution
- Provide admission to students from a secondary education
- Have a license from a proper institution to provide education beyond secondary school
- Offer educational programs that award bachelor’s degrees or, at a minimum, two-year education toward a degree
If the U.S. employer is not a H1B cap exempt employer, the U.S. employer needs to go through H1B lottery for its H1B candidates. Only those who are selected in the H1B lottery can file H1B petitions with USCIS.
8. What is H1B lottery?
H1B lottery is a “random selection process” held by USCIS every year. It is used to select the required number (annually 85000) of H1B candidates from a larger pool of applicants. In order to have H1B lottery, U.S. employers must enroll H1B registration at USCIS’s website in a specific time frame (generally in March). USCIS will conduct the lottery and announce the lottery result in the end of March. Only those who are selected in the H1B lottery are eligible to file their H1B petitions with USCIS.
9. What kind of H1B job is exempt from H1B lottery?
If the H1B job is offered by a H1B cap exempt employer (see item 7 above), it is exempt from H1B lottery.
Besides, if foreign workers have been in H1B status before and have not use up 6 years of H1B period, then U.S. employers may file cap-exempt H-1B petitions and no need to go through H1B lottery for them. However, if H1B workers plan to change employers from H1B cap exempt employers to non cap exempt employers, they must go through H1B lottery.
Example 1: Tom has been in H1B status sponsored by a for-profit company from January 1, 2017 to January 1, 2021. He quitted his H1B job and left the U.S on January 2, 2021. In October 2030, a U.S. employer offers him a job in the United States. Would this U.S. employer be able to file a H1B petition for him without going through H1B lottery? Yes, as Tom has not used up his 6 years of H-1B period.
Example 2: Jack has been in H1B status sponsored by a for-profit company from January 1, 2017 to January 1, 2020. He has a job offer from another U.S. employer in December 1, 2019. Would that U.S. employer be able to file a H1B petition for him without going through H1B lottery? Yes, as Jack has not used up his 6 years of H-1B period. This type of H1B petition is also known as H1B transfer.
Example 3: Mark is working as a H1B worker for a U.S. public university. He plans to change employer which is a for-profit company in Silicon Valley. Does the company need to go through H1B lottery in order to hire him as a H1B worker? Yes.
Example 4: Alice has ever been in H1B status sponsored by a nonprofit research laboratory from January 1, 2017 to September 20, 2019. In March 2019, a for-profit company offered her a job and she was selected in the H1B lottery. Her H1B petition sponsored by this company was approved in August 2019. Starting from October 1, 2019, she began to work in H1B status for this company till January 1, 2021. She quitted her H1B job and left the U.S on January 2, 2021. In November 2021, she received an offer from a U.S. employer. Would this employer file H1B petition for her without going through H1B lottery? If so, how long she can work for this college as a H1B worker? Yes no matter whether this employer is H1B cap exempt employer or not. She can work for this employer as a H1B worker for a maximum of 2 years because she has used 4 years of her H1B period.
10. I am the founder of a U.S. startup, can I sponsor H1B visa myself?
Only if you can prove that there is a valid employer-employee relationship and the startup has control over you. Specifically, you must establish all of the followings:
- A board of directors, CEO, or similar entity has the power to hire, pay, and fire you. Therefore, you will be treated like an employee despite having ownership.
- You are not the sole proprietor of the company.
- The proffered H-1B position must be bona fide, meaning that the company cannot have been started for the purpose of securing an H1B visa.
- The proffered H-1B position must still require a relevant bachelor’s degree or higher.
- The company should have a business plan that includes the purpose of hiring qualified American workers.
11. I am in H1B status now, can I start a business?
Anyone one can start a business in the United States. However, H1B workers can only work for the petitioning employers. Thus, H1B workers can start a business (as shareholders and/or directors) but cannot work for it (no matter whether it is paid or unpaid) unless the business sponsors H1B visa for them. However, as described in item 10 above, to sponsor H1B visa through own business is high demanding and USCIS will strictly scrutinize such cases.
12. My employer is a new startup in the U.S., can it sponsor H1B visa for me?
Literally, yes, it can.
13. My job duties are not closely related to my major, can I apply for H1B?
USCIS might challenge your H1B petition. Nevertheless, you can always try because many job duties can be performed by various majors.
14. I am a F1 student and not graduate yet, I have a job offer, can I apply for H1B?
Only if you can provide evidence when filing the H1B petition with USCIS to prove that you have indeed completed all requirements for the degree, although you haven’t officially received your diploma yet. Generally, an official transcript indicating that the degree has been awarded or a letter from a school official or third party credentials evaluator should work.
15. I am outside the U.S., can I apply for H1B?
Yes, you can. After your U.S. employers files the H1B petition for you and eventually gets its approval notice, you will need to apply for a H1B visa at the U.S. consulate in your home country. Then you can enter the U.S. with the H1B visa no earlier than 10 days before October 1.
16. My F1 will expire before the lottery window, can I apply for H1B?
Yes, you can. However, you should leave the U.S. as early as possible after your F1 expired. When your H1B petition gets approved by USCIS, you will need to obtain a H1B visa from the U.S. consulate in your home country and then reenter the U.S. with this H1B visa.
17. I entered the U.S. with a B2 visa, I-94 only has 6 months, can I apply for H1B?
Yes, you can. However, if the I-94 expires before October 1, you need to leave the U.S. before its expiration. Then obtain a H1B visa with a H1B approval notice and reenter the U.S. with the H1B visa. If the I-94 expires after October 1, you can change your status from B2 to H1B directly and no need to leave the U.S.
18. I entered the U.S. under visa waiver program, can I change status to H1B directly?
No, you can’t.
19. I am in F1 OPT, can I have international travel while my H-1B application is pending with USCIS?
Yes, you can. However, once you leave the U.S. while your H-1B petition is pending with USCIS, you are not eligible to change your status from F1 to H-1B directly. As a result, you need to obtain a H-1B visa first and then enter the U.S. with the H-1B visa no earlier than 10 days before October 1.
20. I had a J1 visa before, now I am in F1 status, can I apply for H1B?
Yes, you can apply for H1B without J1 waiver.
21. I am in J1 status now and subject to two year home country residence requirement, am I eligible for H1B visa?
You are not eligible for H1B visa unless you have J1 waiver or have satisfied the two year home country residence requirement at the time of filing the H1B petition.
22. My F1 OPT expired before October 1, can I continue to work as my H1B petition is pending with USCIS?
No, you cannot continue to work but you can lawfully stay in the United States. You can resume your work on October 1 if your H1B gets approved.
23. How much to apply for a H1B work visa?
If you are the first time to apply for H1B work visa, USCIS charges $1710 (25 or less full time equivalent employees in the U.S.) or $2460 (more than 25 full time equivalent employees in the U.S.). In addition, if the U.S. employer has 50 or more employees in the U.S. and more than 50% of them in H-1B, L-1A or L-1B status, extra $4000 will be charged by USCIS. Attorney fee should also be considered as well. If you want USCIS to process your H1B petition within 15 days, $2500 premium processing fee will be charged.
24. Who is supposed to pay all the costs related to H1B petition?
Premium processing fee can be paid by the H1B candidate (employee) while the petitioning employer should be liable for all other USCIS filing fee and attorney fee.
25. I have multiple job offers, can I be sponsored H1B by all of these employers?
Yes. Actually, having multiple employers to sponsor you H-1B will significantly increase the success rate in the H-1B lottery. However, these employers should not be affiliated to each other. When you are selected in the lottery, you can have one or all of them who are selected in the H-1B lottery help you file the H-1B petition. If you have multiple H-1B approvals, then you must make a final decision to work for one of them starting from October 1.
26. Can I change employer before October 1 if my initial H1B has been approved?
USCIS’s regulations are not clear in this matter. However, based on USCIS’s previous adjudications, the answer is affirmative if the initial petitioning employer has not withdraw its approved H1B petition at the time of USCIS adjudicating the new employer’s H1B petition and the new employer’s H1B petition must be approved by USCIS on or before October 1.
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