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

See the Top H-1B questions by clicking here.

Fees

Fee schedule