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An H-1B visa is meant for foreign nationals who are coming to the United States for a professional assignment considered to be a specialty occupation with a United States employer. Fashion models and individuals who will be working for the Department of Defense (DOD) may also receive H-1B visas. H-1B visas, however, cannot be issued for positions that include agricultural work for H-2A status. Likewise, H-1B visas cannot be issued for activities that qualify for O status or P status. The initial H-1B petition is valid for a maximum of 3 years, although status can be extended for a maximum of 6 years with a few exceptions. Some applicants may be able to apply for an H-1B1 visa instead of an H-1B visa. H-1B1 visas are specifically for foreign nationals from Singapore and Chile and have their own distinct rules and regulations.
The H-1B visa application process requires a petition that must be filed by the foreign national’s employer. The employer must also file a labor condition application (LCA). Each year, there is a limit to the number of H-1B visas that can be issued with a limit of 65,000 for normal status and an extra 20,000 for individuals with advanced United States degrees. Foreign nationals with H-1B status also have dual intent, meaning they can apply for permanent residency while holding a nonimmigrant visa. Likewise, H-1B visa holders can bring dependent family members, including children and spouses, to the United States through an H-4 visa.
There are many requirements for an H-1B visa that individuals should be aware of when beginning the application process.
The foreign national must be working in a position that is considered to be a specialty occupation. A specialty occupation can be defined as a position in which an individual theoretically and practically applies specialized knowledge and for which at least a bachelor’s degree or higher or the equivalent is required. Specialty occupations can include the fields of architecture, accounting, education, engineering, mathematics, medicine, social sciences, and more. The specialty occupation can also be part-time or full-time to qualify for an H-1B visa. The specialty occupation must likewise fit one of the following requirements: 1) a bachelor’s degree or higher (or the equivalent) should be the minimum requirement for the position; 2) the degree that is required is common throughout the position in the industry or the specific position is more complicated than normal and requires someone with a degree; 3) for the position, the employer usually requires a degree or the equivalent; or 4) the requirements of the job are typically associated with a bachelor’s degree or higher. The H-1B petition must include supplementary documentation that proves that the individual’s position is a specialty occupation.
For the first requirement (that a bachelor’s degree or higher or the equivalent should be the minimum requirement for the position) the petition must demonstrate that the course of study of the foreign national’s degree is related to the position. Thus, the petition must include information on the responsibilities of the position in great detail. Adjudicators will look at the job title, the job responsibilities, as well as the size of the employer and the industry. For the second requirement (that the degree that is required is common throughout the position in the industry or the specific position is more complicated than normal and requires someone with a degree), there are different types of proof that may be presented. To show that a degree is a common requirement in the industry, proof may include job postings, industry letters, job announcements, surveys, studies, and more that give detailed descriptions of the positions. For the third and fourth requirement (that for the position, the employer usually requires a degree or the equivalent and that the requirements of the job are typically associated with a bachelor’s degree or higher), proof may include details on past recruiting and hiring for similar positions, affidavits from other employees, and more. However, these details must include evidence such as names, copies of degrees, details on the exact job responsibilities, etc.
Individuals applying for an H-1B visa must also meet some specific requirements. The petition must show that the foreign national is qualified to work in a specialty occupation. An applicant must have a full state license if it is required by the state to work in the occupation, a bachelor’s degree or higher that has a course of study related to the occupation, or the individual must have recognized expertise in the field from previous positions and experience that is equivalent to a degree. In an expansion of the statute, the applicant must also have one of the following: a bachelor’s degree or higher from an accredited college or accredited university that is required by the position, a foreign degree that is the equivalent of a bachelor’s degree or higher from an accredited college or accredited university that is required by the position, a full state license or certification which allows the foreign national to fully and immediately begin working in the specialty occupation, or the individual must have educational experience, professional experience, and other experience that is comparable to a bachelor’s degree or higher and have recognition from previous positions. To prove these requirements, the petition can include affidavits, certificates, degrees, writing, educational documents, and more. It is suggested that when an individual is using licensure as proof that they qualify for the specialty occupation that the petition also include educational qualifications as well.
In some cases, a license may be required on top of educational requirements. Likewise, petitions may only be valid for the period in which the license is valid unless the foreign national is permitted to work without a permanent license or if the foreign national is allowed to practice the specialty occupation without a license if the foreign national is under supervision. However, due to different state regulations, an application will not be denied only on whether or not the foreign national already has a license to practice in the United States.
For some healthcare positions, including for physicians, physical therapists, and medical technologists, the license requirement supersedes any other educational/professional requirement. Thus, when looking at these applications the adjudicator will not look past the license. Typically, a position as a registered nurse (RN) may not qualify as a specialty occupation although there are some circumstances in which a registered nurse (RN) may qualify.
Individuals who are applying for H-1B visas are exempt from some qualifications of the nonimmigrant intent requirement that so many other visas have. Thus, if an individual has submitted an immigrant visa petition or has applied for permanent residency in another fashion, these actions will not lead to the denial of an H-1B petition. Though the H-1B employment should only be planned for a temporary period, H-1B holders also do not have to maintain a residence abroad. Likewise, having applied for permanent residency or having submitted an immigrant visa petition will not impact an H-1B holder’s applications for H-1B status extensions or ability to enter the United States. However, the same regulations do not apply for H-1B1 individuals, although the H-1B1 nonimmigrant intent requirement is less stringent than other visas.
For H-1B workers, employers must file a labor condition application (LCA). The labor condition application (LCA) requires that employers agree to numerous attestations, as well as additional attestations if they are H-1B dependent employers and/or willful violators.
There are four main attestations that the employer must agree to follow when filing the labor condition application. The employer must agree to pay the H-1B individual the required wage, which is higher number of the actual wage or the prevailing wage. The wage attestation also includes agreements on offering the foreign national the same benefits as a United States worker, as well as other benching and payroll requirements. The second attestation requires employers to provide the same working conditions to United States workers and H-1B workers so that United States workers are not negatively affected. The third attestation requires the employer to guarantee that there are no labor disputes certified by the Secretary of Labor in the H-1B individual’s workplace and occupation. The fourth attestation requires the employer to give notice to employees when hiring an H-1B worker who will be working in the same worksite.
There are additional attestations for H-1B dependent employers and/or willful violators. These attestations include agreeing to not displace a United States worker 90 days before or after hiring an H-1B individual, agreeing to not place an H-1B worker at a third-party location if the third-party has displaced a United States worker 90 days before or after hiring the H-1B worker, and agreeing to attempt to recruit a United States worker for the position in good faith.
The employer, which can be an individual, corporation, firm, organization, or association, must file the labor condition application. The employer likewise must be hiring a person to work in the United States, have an Internal Revenue Service Tax identification number, and must have an employer-employee relationship (and thus, can hire, fire, direct, and supervise employees). This relationship may be proven by a few factors. The first of these is the right to control; the United States Citizenship and Immigration Services (USCIS) will look to see whether or not the employer can control where the employee works, when the employee works, and how the employee works. Questions that help determine whether or not the employer has a qualifying relationship with the employee include whether or not the employer has the resources for the employee to perform the role, how the employer will supervise the employee if the employee is working off-site, and more.
The employer will also need to demonstrate proof of an employment relationship. This means that the petition must include proof that the employer and employee have a valid employer-employee relationship. Proof of this relationship may include a copy of the employment agreement, a copy of the offer letter, details on the job position and role that the employer will have, and more.
If the employer terminates the H-1B employee before the employee’s status ends, the employer must pay for the employee’s transportation home to the last residence abroad. Any employer who has employed the foreign national and thus helped maintain the foreign national’s status may be liable for this requirement. This is not required if the employee willingly chooses to leave the position.
Each year, there is a limit to the number of H-1B visas that may be approved. 65,000 petitions are available for H-1B visas along with 20,000 petitions for foreign nationals with master’s degrees or higher, for a total of 85,000 visas for each fiscal year. If the cap of 20,000 visas is met for master’s degrees or higher, applicants will be added to the normal cap of 65,000. The H-1B visa cap is typically reached very quickly as the visa is in high demand. Within the last few years, the cap was reached on the first day of the H-1B visa filing. Each foreign national may be counted towards the cap once every 6 years. If a foreign national is applying for a petition extension, status extension, change in employment, or is recapturing time spent abroad, they will not be counted towards the cap. H-1B1 petitions also take away from the H-1B numerical cap, although, they are typically not filled, and any leftover spots are added back into the H-1B pool. Employers are not allowed to submit multiple petitions for a single employee if the employee would be counted in the cap. If they do, all of the petitions will be denied.
In some cases, employers may be exempt from having H-1B employees that are subject to the cap. If an employer is an institution of higher education, a government research organization, a non-profit that has a relationship with an institution of higher education, or a non-profit research organization, employees are exempt from the H-1B cap. If a foreign national is employed at a different entity but will perform the majority of the work at one of the exempt entities and the work benefits the exempt entity, the foreign national may qualify to be exempt from the cap. If an individual who was previously cap-exempt begins working for an employer that is not cap-exempt, the individual will be counted towards the cap.
As discussed above, there are requirements surrounding labor disputes that employers must follow when filing a labor condition application (LCA). Additionally, H-1B workers may engage in labor strikes without threatening their status.
If a foreign national already holds H-1B status, the foreign national may change employers through a Change of Employer petition. The new employer must file the petition with an I-129 form. The foreign national can either wait until the United States Citizenship and Immigration Services (USCIS) has approved the petition, or, under the portability rule, the foreign national may begin work for the new employer immediately with ongoing employment authorization as long as the new employer has submitted the petition. If the petition is denied, however, the foreign national’s employment authorization will end. If the foreign national is moving from a cap-exempt employer to a cap-subject employer, the foreign national cannot begin work until after October 1 of the fiscal year in which the petition was approved.
The foreign national can also bridge petitions, meaning, the foreign national can begin working for a new employer while still waiting for a previous change of employer petition to be approved. However, if a former petition is denied, the subsequent petitions may not be approved.
Oftentimes, F-1 students will change their status to H-1B upon completion of their academic studies and start of employment. When changing status, individuals must uphold their F-1 status before changing to H-1B status. Before changing status to H-1B, F-1 visa holders can accept signing bonuses.
To bridge the gap between student status and employment authorization, F-1 holders can utilize the cap-gap relief extension. With the cap-gap relief extension, F-1 visa holders who have a pending H-1B petition or approved H-1B petition that begins on October 1st can remain in F-1 status in the gap between when the F-1 duration of status ends and H-1B status begins. To qualify for the cap-gap extension, the foreign national’s H-1B petition must have been filed on time, the foreign national’s employment start date must be October 1st of the upcoming fiscal year, and the foreign national must not have violated the terms of status. If the H-1B petition is rejected, withdrawn, or revoked, the cap-gap status is no longer valid and the foreign national will enter the 60-day grace period of the F-1 visa.
An agent may also file the H-1B petition. Agents may include the foreign national’s employer, a representative of the employer and of the foreign national, or an individual or entity that the employer has authorized to act in its place. Agents can be used to file a petition for multiple employers. Typically, in a situation where a foreign national will be working part-time for multiple employers, each employer would have to file their own H-1B petition. In this case, a single agent may file just one petition as long as it provides the necessary supporting documentation including a schedule of services and other engagements. Agents may also be used to file a petition for foreign nationals who are self-employed or for foreign nationals who will engage in short-term employment with multiple employers. In the latter two cases, the employer-employee relationship must be fulfilled with the customer or client. Thus, the customer or client must have the right to control the H-1B worker (in this case, the H-1B worker could be a fashion model).
H-1B visas require additional fees that are not typical of visa filing fees, these include the American Competitiveness and Workforce Improvement Act (ACWIA) fee, the fraud prevention and detection fee, the I-129 filing fee, and the Public Law 11-3-114 fee. The amount that must be paid for some of these fees may vary depending on the petitioning employer, and in some cases, the employer may be exempt from paying these fees. These will be discussed in greater detail below.
To begin the application process for an H-1B visa, the petitioner must submit the H-1B petition. There are many documents that must be included in the petition and there is a preferred order that they should be compiled in. The petition should begin with an I-907 form, or, a Request for Premium Processing Services, if the petitioner wishes to expedite the application process. If this form is submitted along with the $1,440 filing fee, the petition will receive a response of either approval, denial, or a request for evidence (RFE) within 15 days. If this form is not filed with the petition, it may be submitted after with the receipt notice of the petition.
Next, the petition should include a G-28 form, or, Notice of Entry of Appearance as Attorney or Accredited Representative. For this form, the United States employer is the petitioner and the foreign national worker is the beneficiary. A representative of the United States company must sign the form. It is preferred that the G-28 form be printed on blue paper so it can easily be identified. The petition must then include the I-129 form, or, the Petition for a Nonimmigrant Worker. If the petition is for a cap-subject employer, this should be marked on the form in red ink on the top margin with either “Regular Cap” or “U.S Masters” depending on the type of cap. Part 1 of the I-129 form should include information on the employer such as the address, contact information, and more. In part 2, the type of visa classification and the basis for classification (new employment, change of status, etc.) should be selected. Part 3 should include details on the foreign national, including name, address, country of birth, and passport information. The applicant’s passport must be valid for 6 months after the petition expires. Likewise, if the foreign national is in the United States when the petition is filed, it should also include the individual’s I-94 form. Part 5, part 6, and part 7 should include information on the job position, such as the name of the position, pay, duties, location, and more. The information here should match what was submitted on the labor condition application. Finally, in part 8, the representative of the petitioner and the practitioner of the petitioner must sign the form. The I-129 form also has a $460 filing fee that the petitioner must pay.
The petition should include the H supplement following the I-129 form. Of the H supplement form, only the introduction and section 1 must be filled out. The petition should then include the H-1B Data Collection and Filing Fee Exemption supplement. This form was previously known as the I-129W form. This form determines whether or not the petitioner must pay the American Competitiveness and Workforce Improvement Act, or, the ACWIA fee, whether or not the petitioner is exempt from the cap, and is used to collect other information. Section 1 asks information on the employer, including whether or not the petitioner is an H-1B dependent or a willful violator and determines whether or not the employer must pay the Public Law 114-113 fee. If the employer has more than 50 employees in the United States, and more than 50% are H-1B status, L-1A status, or L-1B status, they will have to pay the $4,000 fee for petitions for initial H-1B status or H-1B change of employer. The employer, not the foreign national, must pay the fee. Question 2, question 3, and question 4 of the first section include information for statistics. Section 2 asks information of the employer in order to determine whether or not the employer must pay the American Competitiveness and Workforce Improvement Act, or, the ACWIA fee and how much the fee will be for the employer. The employer must pay the fee if the petition is for initial H-1B status, if the petition will extend the individual’s H-1B status (for the first time), or if the petition is for a change of employer. If the employer has 26 or more employees, the fee is $1,500 and if the employer has 25 or fewer employees, the fee is $750. The employer must pay the fee, not the foreign national. If an employer is an institution of higher education, a non-profit research organization, a non-profit organization that is related to an institution of higher education, or a government research organization, they are exempt from the fee. Proof that the employer is exempt from the fee must be submitted with the form. Section 3 of the form includes questions that determine what cap the H-1B petition falls into and whether or not the employer is exempt from the cap. Finally, section 4 includes questions on whether or not the foreign national will work off-site and asks the employer to agree to requirements regarding off-site work.
Next, the petition should include a support statement. The support statement should include details on the foreign national’s position and experience and should be printed on the employer’s letterhead and signed by a representative of the company. The statement may include an introduction, details on the petitioner, details on the position, details on the foreign national’s experience, and a conclusion. On top of the other fees mentioned, employers must also pay the fraud detection and prevention fee of $500 for initial H-1B petitions and change of employer petitions. All fees should be submitted separately in the form of a check or a money order to the Department of Homeland Security.
Petitions that are subject to the cap should be submitted on April 1 to have the best chance of being approved. A request for evidence (RFE) may be submitted upon the evaluation of the petition. A request for evidence (RFE) is typically done to be sure that the petitioner holds a professional position. A request for evidence (RFE) may also be submitted if a fee has not been paid, although the petition may also just be denied.
If the petition is approved, the representative or the attorney along with a representative of the company will be sent on an I-797 form, or, Notice of Action. A petition can be valid for a maximum of 3 years, but not for a period longer than the labor condition application. If the petition is denied, the petitioner will be told the reasons for the denial and will have the opportunity to appeal the decision. A petition may also be revoked if the petitioner is no longer in business or if the petitioner withdraws the petition, and in some cases, if the Department of Labor revokes the labor condition application (LCA).
Once the petition has been filed, processed, and approved, the foreign national may begin the visa application process. It is suggested that applicants check with their consulate before beginning the application process to see if it has any specific requirements for the application process. Applicants should begin by completing the DS-160 form, or, the Nonimmigrant Visa Application. They also must upload their photo to specifications and pay the required fee. When the application has been submitted, the foreign national should print and save the DS-160 confirmation page for the visa interview as well as the fee receipt. The visa application may only be completed within 90 days of the start date of employment.
Once the application has been completed, the foreign national can schedule a visa interview at the consulate. An interview is typically necessary if the applicant is between the ages of 14 and 79. It can take a varying amount of time to schedule the visa interview depending on the location, time of year, and the type of visa. The foreign national will also need the number on the I-129 form to schedule the interview. Before attending the interview, the foreign national should check with the consulate to see what it requires for the interview as this may vary by consulate. Typically, applicants should bring their passport, the confirmation page of the DS-160 form, receipt of the fee, a photo to specifications, receipt number for the I-129 petition, the original I-797 form, a statement written by the petitioner (if the interview is for a change of status), a certified copy of the H-1B petition, proof that the applicant qualifies for the H-1B visa, and any other supporting documentation that may be required. After the interview, it can take a varying amount of time to process the visa and some applications may require additional processing.
H-1B visa holders may arrive in the United States 10 days before the petition start date and can remain in the United States for 10 days after the petition expires. At the port-of-entry, individuals must have their passport, the H-1B visa, and the I-797 form. If the foreign national is entering by air or sea, the foreign national will receive a visa stamp, and if the foreign national is entering by land, they will receive a physical I-94 form. If foreign nationals do not receive a physical I-94 form, they should be sure to look it up in order to make sure that the expiration of their status matches the petition expiration date.
There are many required documents and forms that are required to apply for an H-1B visa. These include:
Like with most visas, the processing time for H-1B visas may vary depending on different factors. Once the labor condition application (LCA) has been filed (the preparation for which takes a great deal of time), it takes about 6 months for an H-1B visa to be processed. This time can change depending on the accuracy of the documents submitted, requests for evidence (RFEs), expedited processing, the time of year, whether or not the petitioner is cap-exempt, and more. Usually, cap-exempt applications take substantially less time to process.
There are many fees associated with the H-1B visa. Applicants should keep in mind that many of the filing fees and other fees must be paid by the petitioner and may not be paid by the foreign national or subtracted from the foreign national’s pay in any way.
Potential Cost: $5,900
If an H-1B petition is denied, there are a few strategies that can be taken. An initial H-1B petition can be appealed, although a change of status petition may not be appealed. Likewise, the foreign national may also decide to leave the United States, apply for a change of status to a different visa status, or when applicable, the foreign national may enroll in a higher degree educational program or in some cases request a STEM OPT extension.
An extension may only be filed if the original H-1B petition is still valid, and the foreign national must be in the United States at the time that the petition is filed. The extension should be filed on an I-129 form. The petition should include as much evidence as possible to show that the H-1B worker still qualifies for H-1B status, including proof of the employer-employee relationship. If approved, the extension may be valid for up to 3 years. However, the foreign national may not receive any more extensions if they have been in the United States with H-1B status for 6 years.
Dependent H-4 visa holders, including the children and spouse of an H-1B visa holder, may study while in the United States. In some cases, the spouse may also apply for work authorization allowing them to work while in the United States.
As of June 22, 2020, new H-1B visas have been suspended in the United States due to COVID-19. While existing visas are not affected, no new H-1B visas may be issued.
If your employment ceases unwillingly before your status expires, you can remain in the United States for up to 60 days or for the remainder of your status, whichever is shorter. You cannot work during the 60-day grace period, nor can it be used more than once. Likewise, your employer will be liable to pay for your transportation back to your last place of residence abroad.
If you will be working at a new worksite that was not listed on the labor condition application beforehand, a new labor condition application must be filed. In some cases, an amended petition may also be necessary.