H-1B Visa

Overview/Description

The H-1B visa is a non-immigrant visa that permits a company to hire workers in specialty occupations.  This visa category requires that the beneficiary (the foreign worker) have a Bachelor’s degree, and the Petitioner (the U.S. company) can employ the worker for up to six years.  This is a very popular visa because unlike many other non-immigrant visas that make applying for a green card very difficult and require foreign workers to maintain a residence in their home country, the H-1B visa permits for “dual intent.”  This dual intent allows one to apply for a green card while in the U.S. without running into problems.

The one catch of the H-1B visa is that there is a “cap” on the number of H-1B visas that are issued each year and this cap is often filled very quickly. For the fiscal year 2014, the limit is 65,000 for H-1B visas, with an additional 20,000 visas available for individuals who have earned a Master’s degree or higher from a U.S. school.  There is no way to predict when this year’s H-1B cap will be used up, but in prior years the cap was exhausted within a matter of days.

In the case of a Business Owner, Investor or Entrepreneur, the petitioner and the beneficiary are often the same person but a business owner can use this Visa to sponsor his employees also.  An H-1B Visa can be a tricky visa for a Business Owner if the owner is also the beneficiary as there are strict laws that govern whether or not a person who has an ownership interest in a company can sponsor themselves for an H-1B Visa.  While difficult, it is not impossible and can be done with the help of a qualified immigration specialist.

Requirements/Eligibility

The minimum requirement for the applicant is that he/she has a BA degree but the focus really is on the job.  That is, even if an applicant has a BA degree, USCIS will look at whether or not the job requires one.

To that tend, the job must meet one of the following criteria to qualify as a specialty occupation:

  • Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position
  • The degree requirement for the job is common to the industry or 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
  • 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.

For you to qualify to accept a job offer in a specialty occupation you must meet one of the following criteria:

  • Have completed a U.S. bachelor’s or higher degree required by the specific 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 in the specialty occupation
  • Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment
  • Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

Application Process

The prospective employer must file an approved Form ETA-9035, Labor Condition Application (LCA), along with the Form I-129, Petition for a Nonimmigrant Worker.  After the visa is approved, the beneficiary can apply for a visa at the consulate by showing the approved I-797 notice.  If the applicant is in the U.S., the application can be processed as a change of status and premium processing is available for this visa.

How long does the Visa last for?

The visa is generally initially granted for 3 years and can be renewed for another 3 years.  You can “recapture” the time that you are out of the U.S. and can also get additional extensions under very limited circumstances.

How are Family Members Treated?

Spouse and children under 21 can accompany the beneficiary but the spouse cannot work unless he/she has another visa available to them.

Other Considerations or Related Articles

Related Articles

Common Questions & Answers

Here are the top10 H-1B Questions.

1.  I have heard that as an employer I have to prove that I could not find any U.S. workers before I can get an H-1B Visa for a foreign worker.  What do I have to do for this?

In order to hire a foreign worker under the H-1B program an employer must file a Labor Condition Application (LCA) with the Department of Labor (DOL).
This form has a fair amount of information about the employer and the job that the employer is recruiting for and the employer must attest that the employment of the H-1B beneficiary will not adversely affect the working conditions of workers similarly employed in the area of intended employment.  This attestation does not require advertising the job in a newspaper or providing documentation regarding your applicant search efforts.  This process is not that difficult and is not at all like the PERM certification process that is required for a green card.  Some employers that have had problems with the government in the past or who are “H-1B” dependent (many H-1B employees) have stricter requirements but many fall within the standard outlined above.

2.  Are there any restrictions on what an employer can pay an H-1B worker?

Yes.  There is a minimum amount an employer can pay an H-1B worker and this minimum amount is the higher of either the actual wage level paid to all other individuals with similar experience or the prevailing wage determined by the DOL for the occupation in the area of employment. 
In order to obtain the prevailing wage, employers should work with their lawyers to find out what the department of labor considers the appropriate wage for the employee.  An employer is not permitted to pay less than that wage.

3.     Can I work for myself or work Part-Time?

Generally you cannot work for yourself. While obtaining an H-1B visa while working for yourself is possible, it is very difficult and you would have to set up an entity where your board has the ability to fire you.  This is a complicated area so you should consult an attorney if you want to go down this route.

You are permitted to work part-time under H-1B.

4.     Can I work for more than 1 employer?

Yes under certain conditions.  A visa in the U.S. only permits you to perform the job functions that your visa relates to.  As such, an H-1B visa from one employer will not allow you to work for another employer or perform any independent contract or other work in the U.S..  You can however get another employer to sponsor you and as such have two H-1B petitions filed on your behalf.

5.     What if I get terminated before my H-1B Visa expires?

If you lose your job you lose your status.  While many speak of a 15 day grace period to leave the country, the relevant Statutes do not talk about any grace period so technically you will be out of status immediately after your last day of employment.  (and the employer is required to notify the government that you no longer work there).  You should note that an employer is required to pay reasonable costs to get you back to your home country if you are terminated before your visa expires.

6.     If I already had an H-1B Visa and am Applying for a new one, am I subject to the cap?

If you already had an H-1B visa and you have not used up your 6 years, your new employer can apply for an H-1B visa for you in the same or similar industry without being subject to the cap.

7.     How long does the process take?

Labor certification is done prior to filing the H-1B petition and this usually takes about 2 weeks to get an answer from the department of labor.  If you file your H-1B petition on April 1, you can opt for premium processing and have an answer in 15 calendar days.  Premium processing will run you an additional $1225 but it is well worth it to keep your place in line.

8.     Can I bring my family and can they work in the U.S.?

H-1B visa holders can bring their spouse and children under 21 years of age to the U.S. under the H4 Visa category as dependents.  While the dependents are permitted to remain in the U.S., an H4 visa holder is not eligible to work in the US. They can however attend school, obtain a driver’s license and open a bank account while in the US.

9.     How much does it cost?

An H-1B visa has hefty filing fees and these fees can run over $3,000 depending on the number of employees an employer has and whether premium processing is elected.  In addition, legal fees will run you around $3,000 or more depending on the complexity of a case.

10.  Do I need a lawyer?

Yes.   Like most Immigration law, the H-1B regulations and related Labor Certification Application (LCA) are complicated and you must demonstrate to immigration officials and the department of labor that you have met all of the legal elements.  In addition, given the quota/cap, you have one “bite at the apple” as there is a good chance that if you make a mistake, the cap will be filled.

Fees

Fee schedule

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