The H-1B visa is a non-immigrant visa that allows U.S. companies to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as in architecture, engineering, mathematics, science, medicine, accounting and finance for specified time periods. Individuals are not able to sponsor him or herself for an H-1B visa to work in the U.S. You must have a job offer from a U.S. employer for specialist knowledge duties to be performed in the U.S. A foreign worker can enjoy H-1B status for up to six years. In order to qualify for a H-1B visa, the sponsoring company, the position offered and the potential employee must meet certain specific requirements. H-1B visas are also subject to an annual limit (lottery) as further set out below.
In order to be eligible for a H-1B visa, first, the position offered must be a specialty occupation as follows:
- 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.
Second, the foreign worker must be qualified to accept a job offer in a specialty occupation by meeting 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 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.
Third, the sponsoring U.S. company and the potential employee must show a valid employer-employee relationship. In other words, the foreign worker cannot be self-employed. Any ownership interest in the sponsoring U.S. company can also be problematic.
Lastly, the U.S. company must prove the ability to pay the prevailing wage for the occupation in the geographic area of the employment location. This could be a hurdle for newly established company with no evidence of past revenue and/or sufficient income.
H-1B Visa Cap and Lottery Process
H-1B visas are subject to an annual cap of 85,000 visas per year, with 65,000 issued for workers in specialty or professional occupation positions requiring Bachelor’s Degrees and an additional 20,000 visas available for applicants with Master’s Degrees or higher. All employers applying for a place in the visa cap process can apply as soon as April 1st of the specific year. Once the visa cap has been reached the United States Citizenship and Immigration Services (USCIS) will not accept new applications until April the following year. Because demand for H-1B workers remains high, for the last several years, the quota was filled in the first 5 business days of April.
U.S. Master’s cap petitions will first be sorted from non-U.S. Master’s cases and subjected to the random process to select the 20,000 that will be processed. All cases not selected as part of the U.S. Master’s lottery will be entered into the bachelor’s cap lottery, in which 58,200 cases (65,000 minus 6,800 carved out for Chile and Singapore H-1Bs) will be subjected to the random system to select those that will be adjudicated. Rejected petitions will be returned to the attorney or employer along with the filing fees. Only those petitions that make it through the lottery will be reviewed and adjudicated. If a petition is accepted in the lottery, and approved, the earliest that the H-1B can start is October 1st of the same year.
Please note that H-1B workers who are sponsored by an institution of higher education or its affiliated or related nonprofit entities or a nonprofit research organization, or a government research organization are not subject to this numerical cap.
H-4, Family Members
H-1B visa holder’s spouse and children (under the age of 21) may apply for an H-4 visa to enter the U.S. with the primary H-1B visa holder. As long as the H-1B remains valid, the H-4 family member may reside in the U.S. H-4 spouses, however, are not eligible to work except in very limited cases.
Period of Stay
H-1B visa holders may live and work legally in the U.S. for your specific H-1B sponsor, up to a maximum of 6 years. The initial period of approved status is approximately 3 years and H-1B workers are eligible for at least one extension. In order to extend H-1B status beyond this 6-year maximum, the foreign worker’s green card application process must start at least one and half years prior to this expiration date.
Please note that the H-1B visa like other non-immigrant visa is tied to the sponsoring company. In other words, you cannot freely change jobs. If you want to switch jobs, your new employer must first file a Change of Employer H-1B petition.