Locke Immigration Law

H-1B visa

H-1B Visa for Specialty Occupations

Understanding the H-1B Visa: A Guide by Locke Immigration Law

The H-1B visa is a nonimmigrant work visa that enables U.S. employers to employ foreign workers in specialty occupations. These roles typically require a bachelor's degree or equivalent and are often in fields such as technology, finance, engineering, and architecture.

H-1B Visa Eligibility

To qualify for the H1B visa, you need a valid job offer from a U.S. employer for a role that requires specialized knowledge. You must also have a bachelor's degree or equivalent experience in that field.

Understanding The H-1B Visa Cap

The H-1B visa has a cap, limiting the number of new H-1B visas issued each year. For many years, the annual cap has been set at 65,000 visas. An additional 20,000 visas are available for those with a master's degree or higher from a U.S. college or university. Certain employers, such as institutions of higher education, some nonprofit organizations, and government research organizations, are exempt from the visa cap. Someone who has already been granted a visa under a previous year’s annual cap may change employers without being counted again.

H-1B Visa Lottery

For two weeks each year in March, USCIS accepts registrants for a lottery to be held at the end of that month. Being selected in the lottery enables the selected employer to proceed with filing an I-129 petition on behalf of the sponsored foreign worker who was named on the registration. The employer gets a three-month window to file. The H-1B petition is normally granted for a three-year period that begins on October 1 of that year.

The H-1B Visa Process

To sponsor an H-1B worker, the employer must first obtain a certified Labor Condition Application (LCA) from the Department of Labor (DOL) for Certification, then filing Form I-129, Petition for a Nonimmigrant Worker, to USCIS, along with required filing fees and supporting evidence. If the sponsored worker already holds H-1B status with another employer, the new employer can file the H-1B petition at any time of year. If the sponsored worker is seeking their first H-1B and the employer is not cap-exempt, the employer must first enter the H-1B cap lottery and have their registration selected before proceeding with a petition filing.

What's Next

An H-1B worker may work for up to six years in H-1B status (issued in increments of up to three years), by which point the worker must have a green card process underway to be eligible to continue extending their H-1B status.

The employment-based green card process is slow. A sponsoring employer should aim to commence work on the green card process while the H-1B worker still has three or more years of eligibility in H-1B status left.

FAQs

  1. Can I expedite my H-1B petition? Yes, premium processing is available for H-1B petitions. To request premium processing, the sponsoring employer must submit Form I-907, Request for Premium Processing Service, and pay the $2,500 filing fee to USCIS. The request can be submitted with the I-129 petition, or it can be submitted later while the petition is pending.
  1. Can I travel outside the U.S. when I am in H-1B status? Having your H-1B status approved by USCIS allows you to live and work in the U.S. in H-1B status, but you will also need a valid H-1B visa issued by a U.S. Consulate or Embassy in order to return from international travel.
  1. When can I start filing my H-1B visa petition? If your H-1B visa is subject to the cap, your prospective H-1B sponsor will need to register in the annual lottery in March. If you already hold H-1B status or you have a job offer from an employer that is not subject to the H-1B cap, then the employer can file a petition on your behalf at any time of year.
  1. Can I extend my H-1B visa? Your H-1B petition is generally issued for three years, and your status can be extended for up to six years. You can remain in H-1B status even longer than six years if you hit certain milestones in the green card process but have not achieved lawful permanent residence by the time you exhaust your initial six years of H-1B status.
  1. Can I transition from an H-1B visa to a green card? The H-1B visa is a dual-intent visa, which means that yes, you can apply for a green card. Your employer should aim to commence work on your green card while you still have at least three years of eligibility left of your H-1B status.
  1. Can I apply for an H-1B visa if I don’t have a job first? You will need an employer that is offering you a specific, qualifying job to file the H-1B petition on your behalf.
  1. Will my family be able to come with me, if I hold an H-1B visa? Yes, your spouse and your children and stepchildren under the age of 21 can apply for H- dependent status so that they can live in the U.S. with you while you hold H-1B status.
  1. Can my spouse work in H-4 status? It depends. If your spouse holds an H-4 visa, they may be able to apply for employment authorization if you, the H-1B visa holder, have hit certain milestones in your own green card process.