H-1B Visa

The H-1B visa is the most well known of the work visas available under U.S. immigration law.  Most often the H-1B visa is used by companies to facilitate lawful employment of a foreign national to work in a “specialty occupation” or a position that is considered “professional”.   What that means is that the job at issue must be one that is typically filled by a university educated individual and the worker at issue has attained the degree, or its equivalent, in the field at issue.

Applying for H1-B Visa

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More specifically, the basic requirements for an H-1B visa are as follows:

  • The petitioning organization must prospectively have an “employer-employee” relationship with the foreign worker,
  • A qualifying position is deemed to be a “specialty occupation” by falling under of the following categories:
  1. A bachelor’s degree or higher or its equivalent is usually a minimum job requirement for the position at issue;
  2. A university degree requirement is typical for the industry at issue and the job being offered, or the position is so complex or unique that only an individual with at least a university degree (B.S/B.A. or higher) in the field at issue, can fill the position,
  3. The petitioning company policy is to require workers filling the position at issue to have attained a university degree or equivalent or
  4. The nature of the specific job duties at issue are so complicated and/or specialized that a suitable educational background to qualify for the position normally would involve the attainment of a university degree or higher.
  • The “specialty occupation” that is the basis of the H-1B petition must related to the prospective worker’s field of study (or sometimes their experiential background),
  • The employer filing the H-1B petition must include a Department of Labor certified Labor Condition Application as a supporting document to the filing,
  • The prospective worker must be compensated at least at the “prevailing wage”, or the level that other similar workers at the company are being paid – whichever is higher,
  • At time of petition filing, an H-1B visa must be available given the limited annual supply of H-1B visas or be exempt from the annual statutory cap.

For further information about these requirements, see https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-dod-cooperative-research-and-development-project-workers-and-fashion-models

The H-1B visa petition process:

  • Prepare and file the signed Form I-129, Petition for Non-Immigrant Worker along with the appropriate supplement pages, and with the appropriate CIS Service Center,
  • The required filing fees must be included with the filing. Including the wrong amount will cause the petition to be rejected,
  • Supporting documentation must be included, such as evidence of educational credentials, job offer letter and certified Labor Condition Application.
  • Sign and File the Form I-129. File the petition at the correct filing location according to form instructions.

Period of eligibility: The initial period of approval can be for up to 3 years, and renewable for another three years.   Renewals beyond 6 years are available in some cases where efforts at pursuing lawful permanent residence by way of an employment based green card filing are significantly under way.

H-1B Visa Cap

Under federal law, 65,000 H-1B visas are available each fiscal year, with workers who have obtained a Masters Degree or higher from a U.S. institution given priority over 20,000 of this supply.

Beyond the 65,000 cap, H-1B visas are also available for qualified workers being petitioned to fill positions in an institution of higher education, an affiliated qualifying nonprofit organization, or a government research organization.

See also – https://my.uscis.gov/exploremyoptions/h1_visas_for_temporary_workers

Family of H-1B Visa Holders

H-4, dependent visas are available for spouses and unmarried children under the age of 21 and these family members are eligible to accompany their family member for the duration of the principal family member’s H-1B visa stay.

BEYOND H-1B:  If an employer and their worker are lucky enough to secure an H-1B work visa, it is likely because both the company and the worker bring something genuine and valuable to the table.   Once the worker gains entry into the U.S. as an H-1B worker, the parties, assuming they are interested, should be looking at the next step of securing the worker’s permanent foothold in the U.S., in light of the 6 year H-1B visa status limitation.  Such a decision to proceed with the next step should be considered no later than 4 years after entry, a period of time which should be sufficient for the parties to know where they stand when it comes to the future of the employer/employee relationship at play.