The H-1B visa is a non-immigrant visa category in the United States that allows U.S. employers to temporarily employ foreign workers in specialty occupations.
Requirements to be eligible for applying H1B Visa
To qualify for an H-1B visa, both the employer and the foreign worker must meet certain requirements:
The job the foreign worker is hired for must be in a “specialty occupation.” This typically requires a bachelor’s degree or higher that is commonly associated with a specific field of expertise, such as technology, science, engineering, or mathematics.
Employer Sponsorship- Employer must demonstrate having Job requirement which they are not able to fulfil from within US:
An employer in the United States must sponsor the foreign worker for the H-1B visa. The employer is required to demonstrate that they have a job offer for the foreign worker and that the wage being offered is at or above the prevailing wage for that occupation in the specific geographic area.
The foreign worker must have the necessary educational background and qualifications for the job.
Visa Cap for issuance of H1B Visas:
There is an annual cap on the number of H-1B visas that can be issued each fiscal year. In recent years, the number of applications generally far exceed the cap, leading to a lottery system for selection.
Duration of H1B Speciality Visa- Maximum of 6 years including one extension:
H-1B visas are typically issued for an initial period of up to three years and can be extended for an additional three years. Under certain circumstances, H-1B holders can request extensions beyond the six-year limit. In this case, both employer and the hired employee must demonstrate the need for the extension and non-availability of required talent locally.
Dual Intent: H-1B visa holders can have “dual intent,” which means they can apply for U.S. permanent residency (a green card) while holding an H-1B visa.
Process to apply for H1B Speciality Visa
The process for obtaining an H-1B visa can be complex, and applicants often require legal assistance from experts to comply with U.S. immigration laws and regulations throughout the application and employment process.
Obtaining an H-1B specialty visa in the United States involves a multi-step process. Here’s an overview of the steps to get an H-1B specialty visa:
Find a Job Offer:
The first step is to find a job offer from a U.S. employer. The job must be in a “specialty occupation” and as said above that the applicant must meet all education and experience criteria to justify its suitability to the job.
US Employer to file Labor Condition Application (LCA):
U.S. employer, offering you the job, needs to file a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL). The LCA ensures that the employment of the H-1B worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
File Form I-129 with USCIS:
The sponsoring employer submits Form I-129, Petition for a Nonimmigrant Worker, to the U.S. Citizenship and Immigration Services (USCIS). This form includes information about the employer, the job position, and the foreign worker.
Required Documentation to support H1B Visa application:
- Copy of the job offer and employment contract.
- Proof of your qualifications and its transcripts.
- Documentation demonstrating that the job qualifies as a specialty occupation.
- Proof that you are eligible to work in the United States.
- Payment of the appropriate filing fees.
If the number of H-1B petitions exceeds the annual cap (quota), a random lottery is conducted to select which petitions will be processed. If your petition is selected, it moves on to further processing. If not, you may have to try again in the next fiscal year.
USCIS Processing and Visa Application:
USCIS reviews the petition and supporting documents. They may issue a Request for Evidence (RFE) if additional information or clarification is needed to which you must respond promptly. If USCIS approves the H-1B petition, you can then apply for an H-1B visa at a U.S. embassy or consulate in your home country.
Attend a visa interview at the U.S. embassy or consulate in your home country. You may be required to provide additional documentation and undergo an interview with a consular officer.
Once in the U.S., ensure that you maintain your H-1B status by complying with the terms of your visa, working for the sponsoring employer. You can generally stay in the U.S. for the duration of your approved employment, up to a maximum of six years.
Cost of making H1B Visa Application
Here is an overview of the primary costs associated with the H-1B visa application process:
- Basic filing fee: $460
- American Competitiveness and Workforce Improvement Act (ACWIA) training fee: $1,500
- Prevention and Detection of Fraud and Misrepresentation fee: $500
- Public Law 114-113 fee: $4,000 (for companies with more than 50 employees in the US, of whom more than 50% are in H-1B or L-1 non-immigrant status)
- Premium processing fee (optional): $2,500
Above fees are generally paid by Employer.
Following fees are to be paid by H1B Visa Applicant:
- Consular processing fee: $160
- Visa issuance fee: $220
- I-129H Supplement fee: $4
- Attorney fees and costs (optional): varies depending on the attorney chosen by you and the fee negotiated for his services.
In addition, some other expenses that need be incurred include Travel expenses for attending interviews, Cost of medical exam, Cost of living in the US while waiting for H-1B visa approval and some miscellaneous expenses.
Success rate of issuance of H1-B Visa
In recent years, the approval rate for H-1B visas has touched 97% though few years earlier it has been as low as 70%.
Having a strong job offer and submitting a well-prepared petition can increase the applicant’s chances of success.
However, Job Offer from a company that has a history of H-1B visa denials, submitting an incomplete or inaccurate petition can decrease the applicant’s chances of success
Following professions are more likely to get H-1B specialty visas:
- Information technology (IT) professionals
- Engineers: Electrical engineers, mechanical engineers, civil engineers etc,
- Healthcare workers: Physicians, nurses, pharmacists, etc.
- Professors and teachers with specialized knowledge in fields such as science, technology, engineering, and mathematics (STEM) are also in high demand.
- Accountants: Accountants with specialized knowledge in areas such as tax accounting and auditing
A fun fact about the H-1B specialty visa is that it was created as part of the Immigration Act of 1990, signed into law by President George H.W. Bush.
This visa category was established to allow U.S. employers to temporarily employ foreign workers in specialty occupations that require specialized knowledge and expertise. Since its inception, the H-1B visa program has played a significant role in shaping the American workforce, attracting talent from around the world and contributing to innovation in various industries, particularly in the fields of technology, science, and engineering.
Can a H1-B Visa holder apply for Green card?
Yes, an H-1B specialty visa holder can apply for a green card. In fact, the H-1B visa is considered a dual-intent visa, which means that H-1B visa holders can immigrate to the United States and maintain their temporary work status at the same time.
Applying Green Card through Employer
There are several ways that an H-1B visa holder can apply for a green card. One way is through their employer. If the employer is willing to sponsor the H-1B visa holder for a green card, they can file a Petition for a Non-immigrant Worker (Form I-140) on the H-1B visa holder’s behalf. Once the Form I-140 is approved, the H-1B visa holder can then apply for a green card through consular processing or adjustment of status.
Applying Green card through Family member
Another way that an H-1B visa holder can apply for a green card is through a family member. If the H-1B visa holder has a spouse or parent who is a US citizen or permanent resident, they can file a Petition for an Alien Relative (Form I-130) on the H-1B visa holder’s behalf. Once the Form I-130 is approved, and a visa is available in the H-1B visa holder’s category, the H-1B visa holder can then apply for a green card through consular processing or adjustment of status.
Applying Green card through EB-1A program
Finally, H-1B visa holders may also be eligible for green cards through other programs, such as the EB-1A program for aliens with extraordinary ability, the EB-1B program for outstanding professors and researchers, and the EB-2 NIW program for aliens with advanced degrees or exceptional ability.
Expected changes in H1-B Specialty Visa Program
The Biden administration has proposed a number of changes to the H-1B specialty occupation visa program, which are currently in the public comment phase. The proposed changes are designed to improve the efficiency and integrity of the program, and to make it more accessible to legitimate employers and workers.
Some of the key proposed changes to H1-B Specialty Program include:
Eliminating the lottery system for selecting H-1B visa beneficiaries.
Instead, the USCIS would prioritize applications from employers who pay their H-1B workers above the prevailing wage for their occupation and geographic location. This would help to ensure that H-1B visas are used to attract and retain high-skilled workers who are not displacing American workers.
Streamlining eligibility requirements for specialty occupation positions.
The USCIS would clarify the definition of a specialty occupation and provide more guidance on how to meet the eligibility criteria. This would help to reduce confusion among employers and adjudicators and make it easier for legitimate employers to hire H-1B workers.
Definition of a “specialty occupation” for H-1B eligibility is also set to undergo revisions.
In addition to changes in the selection process, the definition of a “specialty occupation” for H-1B eligibility is also set to undergo revisions. Cyrus D Mehta, a New York-based immigration attorney, explained that a job position will no longer be considered a specialty occupation if a general degree, such as business administration or liberal arts, without further specialization, suffices for the role. This means that applications for positions like marketing managers without specialized degrees may not be approved.
How H-1B visa changes will affect International students:
International students studying in the United States on an F-1 or study visa, who wish to transition to a non-immigrant work visa or H-1B, might benefit from the proposed H-1B modernisation rules.
For international students who have completed their qualifications and are eligible for optional practical training (OPT), the proposed rule provides an OPT duration of one year. However, students in the STEM (science, technology, engineering, and mathematics) field of study will receive an extended duration of two years.
Many individuals pursuing OPT are sponsored for the H-1B work visa by the organization where they are undergoing training. Currently, if their H-1B application is filed on time, they can continue working beyond the expiration date on their OPT employment authorization document while awaiting the start date (October 1) of an approved or pending H-1B application. However, if the application is not processed by October 1, the student must stop working from that date onwards.