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H-1B

  • Overview
  • Requirements
  • Filing Process
  • Common Questions & Answers

Overview

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 at least 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 the H-1B visa permits for “dual intent” which allows the qualifying worker to work and apply for a green card while in the United States.

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. The H-1B visa has an annual numerical limit "cap" of 65,000 visas each year. The first 20,000 petitions filed for the beneficiary with a U.S. master's degree or higher are exempt from the cap. For H-1B workers employed at an institution of higher education, nonprofit entities/research organization, or a government research organization are not subject to this 65,000 visa cap.

In the case where the petitioner and the beneficiary are the same person, i.e. the business owner is also the person being petitioned under the qualifying organization, there are strict laws that govern whether a business owner who has an ownership interest in the company can sponsor themselves for an H-1B Visa. You should consult with a qualified immigration attorney to assist you with the petition as it involves analysis of your particular situation and properly prepare for the filing of your application.

Requirements

To qualify for H-1B visa, you must:

  • You must have an employer-employee relationship with the petitioning U.S. employer.

In general, the U.S. employer should be able to hire, pay, fire, supervise or have control over the work of the petitioning employee. The main factor for a valid employer-employee relationship is whether the company has the right to control the employee's employment.

  • Your job must qualify as a specialty occupation by meeting one of the following criteria:
    • A bachelor's degree or higher degree or its equivalent is normally the minimum requirement for the particular position;
    • The degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor's degree in a field related to the position;
    • 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.
  • Your job must be in a specialty occupation related to your field of study.
  • You must be paid at least the actual or prevailing wage for your occupation, whichever is higher.

The prevailing wage is based on the position you will be employed and the geographic location where you will be working. 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.

Filing 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. 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.

The H-1B 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.

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

Common Questions & Answers

See our articles that answer various immigration questions on our blog.

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