Everything You Need to Know About H-1B
Updated on 11/02/2022
Visas are sometimes thought to only provide benefits to foreigners seeking to come to the United States. In fact, certain visas also can provide benefits to persons already in the United States.
One such visa that can benefit U.S. persons is the H-1B visa (also sometimes described as the H1B visa). Under the H-1B visa, certain foreign workers can come to the United States to work for a U.S. employer. While the H-1B visa allows certain foreigners to obtain jobs in the United States, it also helps U.S. employers use foreign labor to provide services for their businesses.
This article provides you with all the basic information you need to know about the H-1B visa, specifically discussing the following:
1. What is an H-1B Visa?
It is important to understand both what is an H-1B visa, and what it is not.
First, the H-1B visa is a nonimmigrant visa. As a result, the H-1B visa is not equivalent to a green card; it does not extend any permanent right to work or otherwise reside in the United States. Instead, it provides a temporary right (as described below, generally for three years, extendable to six years) to work in the United States. It should be noted, however, that an H-1B visa holder can have “dual intent” and separately apply for a green card at the same time as an H-1B visa.
Second, the H-1B visa is specifically based on an employment relationship. Unlike other visas, it is not all based on a family relationship.
Third, to obtain an H-1B visa, you need a sponsoring employer. You cannot apply for the H-1B visa on your own without a sponsoring employer. In addition, the H-1 B visa is not a general right to work in the United States; instead, it is a right to work for only the specific sponsoring employer (subject to an H-1B transfer, as described below).
2. Three Eligible Classifications of H-1B Visas
There are three possible classifications for which you can qualify for an H-1B visa.
First, you can qualify for an H-1B visa if you are performing certain services in a “specialty occupation”.
According to the U.S. Citizenship and Immigration Services (“USCIS”), a specialty occupation requires (a) theoretical and practical application of a body of highly specialized knowledge, and (b) 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.
H-1B specialty occupations may include fields such as architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.
Your position in the specialty occupation must meet one of the following criteria to qualify for this first classification of H-1B visa (known as an “H-1B Specialty Occupations” visa):
- Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the particular position;
- The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, the job is so complex or unique that it can be performed only by an individual with a degree;
- The employer normally requires a degree or its equivalent for the position; or
- The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
In addition, to qualify to perform services in the specialty occupation for purposes of an H-1B Specialty Occupations visa, you must meet one of the following criteria (collectively the “Beneficiary Qualifications”):
- 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.
Second, you can qualify for an H-1B visa if you are performing certain services of exceptional merit and ability relating to a Department of Defense (“DOD”) cooperative research and development project.
According to the USCIS, to be eligible for this second category of H-1B visa (known as an “H-1B2 DOD Researcher and Development Project Worker” visa), you must have a baccalaureate or higher degree or its equivalent in the occupational field in which you will be performing services. This requirement generally can be met by meeting one of the Beneficiary Qualifications described above, applicable to the duties of your job.
In addition, for purposes of an H-1B2 DOD Researcher and Development Project Worker visa, the visa petition must be accompanied by (1) a verification letter from the DOD project manager for the particular project stating that the beneficiary will be working on a cooperative research and development project or a coproduction project under a reciprocal Government-to-Government agreement administered by DOD, (2) a general description of the beneficiary’s duties on the particular project and the actual dates of the beneficiary’s employment on the project, and (3) a statement indicating the names of noncitizens currently employed on the project in the United States and their dates of employment and the names of noncitizens whose employment on the project ended within the past year.
Third, you can qualify for an H-1B visa if you are performing certain services as a fashion model of distinguished merit or ability.
According to the USCIS, to be eligible for this third category of H-1B visa (known as an “H-1B3 Fashion Model” visa), your position and services must require a fashion model of prominence.
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3. Applying for an Initial H-1B Visa
To understand the process of applying for an initial H-1B visa, it is first necessary to understand three concepts – the “H-1B cap”, the “H-1B lottery”, and “H-1B registration”.
The H-1B cap means that H-1B visas are subject to certain annual numerical limits.
First, there is a general annual limit each fiscal year (i.e., from October 1 to September 30) of 65,000 new H-1B visas (the “regular 65,000 H-1B cap quota”).
Second, there is an additional annual limit each fiscal year of 20,000 new H-1B visas for applicants who have earned a U.S. master’s or higher degree (the “additional 20,000 master’s degree H-1B cap quota”).
Higher education institutions, non-profit organizations associated with higher education institutions, and non-profit or government research organizations are exempt from the H-1B cap.
In addition, pursuant to United States Free Trade Agreements with Chile and Singapore, 6,800 visas are exempt from the H-1B cap and allocated each fiscal year for citizens of Chile and Singapore.
The H-1B lottery is the name given to the process of allocating potential H-1B visas to the available slots under the H-1B cap. The issue of the H-1B lottery will arise whenever there are more H-1B cap-subject registrations than available aggregate slots under the regular 65,000 H-1B cap quota and the additional 20,000 master’s degree H-1B cap quota.
The USCIS will conduct a computer-generated random selection process in the H-1B lottery. It will first fill slots pursuant to the regular 65,000 H-1B cap quota and then will fill slots pursuant to the additional 20,000 master’s degree H-1B cap quota.
H-1B registration is how employers participate in the H-1B lottery.
Employers file an electronic registration and pay a $10 fee per employee to register the employees they wish to sponsor for an H-1B visa.
H-1B registration must be completed during a defined registration period to be eligible for the H-1B lottery. For example, for fiscal year 2022, the H-1B registration period went from March 9, 2021 to March 25, 2021.
After H-1B registration and the H-1B lottery, the USCIS will issue “Selection Notices” electronically for all selected registrations with instructions on how to apply for an H-1B visa.
If you are selected in the H-1B lottery, the following three steps must be followed in the process of applying for an initial H-1B visa:
- ) For purposes of the H-1B Specialty Occupations visa and the H-1B3 Fashion Model visa, the first step is for the employer to apply for and receive Department of Labor (“DOL”) certification of a “Labor Condition Application” (“LCA”). Under the LCA, the employer will attest that it will comply with the following labor requirements:
- The employer will pay the H-1B worker a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for the position in the geographic area in which the H-1B worker will be working.
- The employer will provide working conditions that will not adversely affect other similarly employed workers.
- At the time of the LCA there is no strike or lockout at the place of employment.
- Notice of the filing of the LCA with the DOL has been given to the union bargaining representative or has been posted at the place of employment.
- ) The second step is for the employer to file Form I-129, “Petition for a Nonimmigrant Worker”, with the USCIS.
- ) The third step is that once the Form I-129 has been approved, the prospective H-1B worker who is outside the United States needs to apply both (a) with the U.S. Department of State at a U.S. embassy or consulate abroad for an H-1B visa, and (b) with U.S. Customs and Border Protection for admission to the United States in H-1B classification no earlier than 10 days before October 1. For those who is inside the United States and their I-129 approval notice has an I-94 card on it, their status will change to H-1B from October 1 or the approval date, whichever is the later.
To obtain an initial H-1B visa, in addition to the above-described $10 registration fee, you generally will need to incur charges of $460 for the Form I-129 filing fee, plus a $750 ($1,500 if the employer has 26 or more full-time employees) training fee, plus a $500 fraud prevention and detection fee, and plus, for employers with more than 50 employees with over half on H-1B or L-1 visa status, $4,000. There is also the option to incur a premium processing fee (guaranteeing a 15-day processing time period) of $2,500.
The spouse and unmarried children under 21 years of age of an H-1B visa holder may be able to attain admission to the United States under the H-4 visa classification.
4. H-1B Extension
An initial H-1B visa generally is effective for three years. It is then possible for you to file for an H-1B extension to add an additional three years to the H-1B visa, increasing it to six years.
A new LCA and a new Form I-129 will need to be prepared and filed for your H-1B extension.
Your H-1B extension will not be subject to the H-1B cap, H-1B lottery, and H-1B registration process.
Your H-1B extension should be filed as soon as possible to allow for USCIS processing time, but cannot be filed any earlier than six months before the expiration of your initial H-1B visa.
5. H-1B Transfer
What if you change jobs during the course of your H-1B visa? An H-1B transfer may be able to help you.
Under an H-1B transfer, you need to be sponsored by your new employer. You cannot obtain an H-1B transfer on your own.
While your former employer does not need to consent to your H-1B transfer, you need to satisfy all of your prior contractual and noncompete obligations before transferring to the new employer. In addition, to obtain an H-1B transfer, you cannot have violated any of the terms of your H-1B visa or committed any unlawful conduct in the United States.
If the H-1B transfer involves transferring from an H-1B cap-exempt employer to an H-1B cap-subject employer, you will need to enter the H-1B lottery process.
While initial H-1B visas, H-1B extensions, and H-1B transfers can all be obtained, DYgreencard.com can be your source to answer any questions and help you better navigate the H-1B visa process. If you are a foreign worker seeking to obtain an H-1B visa so that you can work for a U.S. employer, or if you are a U.S. employer seeking to obtain an H-1B visa so that a foreign worker can provide services for your company, please contact DYgreencard.com.