Understanding H-1B Visa Applications

Are you a foreign national with internationally recognized skills or talents? If you wish to work in specialty occupations and services in the United States, the H-1 B visa is available to people like you. 

This article aims to help readers understand the H-1B visa application process and the requirements for qualifying for this program.

What Is H-1B Visa?

The H-1B visa program applies to foreign nationals who want to work in particular jobs or as fashion models. U.S. employers may hire nonimmigrant foreign nationals to work in the U.S. A specialty occupation needs an application of highly specialized knowledge and the minimum requirement of a bachelor's degree, higher degree, or equivalent.

There are different classifications of H-1B visa programs, each catering to specific types of visa applicants.

• H-1B visa: Those performing services in a specialty occupation
• H1B1 visa: Specialty workers from Singapore and Chile under free trade agreements (FTAs)
• H-1B2 visa: Those providing extraordinary services for a U.S. Department of Defense (DOD) research and development project worker
• H-1B3 visa: Those working as fashion models of distinguished merit

The main goal of the H-1B application is to help U.S. employers who can't gather the needed abilities and skills from U.S. workers by temporarily hiring qualified foreign nationals.

What Are the General Requirements to Become an H Visa Holder?

Like other temporary work visas, H visas also require sponsorship from a U.S. employer. This means the foreign worker should have an offer to work in the U.S. in some capacity before they can apply for H-1B Visa.

The H-1B visa applicant should also have at least a bachelor's degree or equivalent in the specialty occupation they are applying for. This acknowledgment of skill should come from an accredited institution. They should also have a license to practice in that field if applicable. Considerable training or experience in the specialty occupation is also recognized.

H-1B2 visa applicants need an extra eligibility requirement. They should also hold an unrestricted state certification, registration, or license that authorizes them to perform the duties required by the job. An aerospace engineer with specialized knowledge in spacecraft design or a medical scientist with technical expertise in pharmacology is an example of a qualified H-1 B visa applicant.

Meanwhile, H-1B3 visa applicants should be prominent fashion models with distinguished ability and merit. The model should present evidence of substantial recognition or skills that make them exceptional. National or international news stories, reviews, and articles can provide proof of the documentation fashion models need.

How Can a Job Be Considered a 'Specialty Occupation'?

The U.S. Citizenship and Immigration Services (USCIS) provides general requirements for what constitutes a "specialty occupation."

Some criteria include:

• Educational requirements. The position should require the practical and theoretical application of highly specialized knowledge. This means a bachelor's degree or higher or its equivalent.
• Standard educational requirements in the industry. The position should be where the educational requirement is often the minimum entry requirement. This also means that the industry expects the required degree.
• Specialized nature of work. The duties required for the position are technical and complicated, and the knowledge necessary is often associated with experience, education, or specialized training.

If you meet the requirements, it's time to apply for a H-1B visa.

What Is the Process to Get an H-1B Visa?

Below are brief explanations of the steps required for an H-1B visa application.

Employers or Agents Get a Labor Condition Application From the Department of Labor

Prospective employers or agents should get a Labor Condition Application (LCA) from the U.S. Department of Labor (DOL). The LCA includes certain attestations that the employer will follow specific labor requirements. Violations of these requirements can result in fines, bars on sponsoring more visa petitions, and other sanctions against the employer. The labor condition requirements are:

• Employers will pay the H-1B visa holder a wage equal to the salary paid to similarly qualified workers or, if greater, the standard wage paid for the position in the corresponding geographical location.
• Employers will adhere to working conditions that will not negatively affect existing, similarly employed workers. There must be no strike or lockout at the time of the application. The employer must give a notice of the application with the DOL to the union representative if applicable. Or post it at the business location.
• Employers must get certification of a Labor Condition Application for H-1B (specialty workers) and H-1B3 (fashion models) applicants. This does not apply to H-1B2 (Department of Defense Research and Development Workers) applications. See the DOL's Hiring Foreign Workers section for more information about the Labor Condition Application process.

Note that a separate process exists to get a Labor Condition Application from the Office of Foreign Labor Certification. This website by the Department of Labor discusses the process in detail.

Employer Submits LCA to DOL for Certification

Once the employer gets an LCA, it should submit it to the Department of Labor. The LCA attests to compliance with the H-visa program. The employer should submit the LCA six months before the employment start date. You can file the LCA electronically through the Foreign Labor Application Gateway of the DOL.

Employer files Petition for Nonimmigrant Worker (Form I-129) to USCIS

The employer or agent submits a Petition for Nonimmigrant Worker with the USCIS Service Center. The LCA certified by the DOL should get the Form I-129 petition.

Prospective Worker Should Apply for U.S. Visa

After the approval of the Form I-129 petition, the H-1B worker outside the U.S. may apply for a U.S. visa at the U.S. embassy or U.S. consulate in their home country. Regardless of the visa rule, the prospective H-1B worker should apply to U.S. Customs and Border Protection (CBP) for admission to the U.S. with an H-1B classification.

How Long Can I Stay in the U.S. with an H-1B Visa?

As an H-1B specialty occupation or fashion model, you can stay in the U.S. for up to three years. This period can be extended. But it can't go beyond six years.

If a labor certification or an immigrant visa petition, such as a green card application, is pending, you can get an extension beyond six years. Another case where you can get an extension beyond six years is if you have an approved visa petition but can't get a U.S. visa because of country limitations. Your employer should show that no visa is available when they file an H-1B visa extension.

The USCIS may also allow an extension of your U.S. visa if you change jobs. But, they will consider all factors involved. For instance, if your situation changes, the USCIS will look at the totality of the circumstance and decide if they will grant an extension of your H-1B visa. This includes why you left your previous job and your new employer's steps after the employment change.

What Is the H-1BVisa Cap Every Fiscal Year?

The H-1B visa has a numerical limit of 65,000 every fiscal year. But, 20,000 petitions for beneficiaries with master's degrees or higher education are exempted from the 65,000 annual cap. Also, H-1B workers hired by higher education institutions, nonprofit research organizations, and nonprofit entities or government research organizations are not in the 65,000 annual cap.

What if the Foreign Worker Change Employers?

If you are changing to a new employer, you may start working for the new employer as soon as they file the Form I-129 petition on your behalf. But, if you lose your H-1B job, you must find a new employer within 60 days. You may also change your H-1B status to permanent residence or other visa categories. But, if you can't find employment within 60 days, you may also opt to leave the United States.

If you change jobs within the same employer, your employer should file Form I-129, and you can continue working under new terms upon filing the Form I-129. But, if you are moving to another job that is not subject to the H-1B cap to one that is subject to the numerical limit, your new employer should first register with the H-1B lottery. The USCIS uses a visa lottery when there are more H-1B visa applications than the yearly limit.

If the USCIS selects the registration filed by your employer, your new employer may file the I-129 petition on your behalf. You may then start working under the cap-subject employment after your new employer files the petition on your behalf.

Visit this H-1B Specialty Occupations article for more information about changing employers or employment terms. The USCIS also has detailed information about this nonimmigrant visa category.

How Do I Submit a H-1B Visa Application?

Beginning in February 2024, the USCIS organizational accounts now allow H-1B registrations, H-1B petitions, and associated requests for premium processing to get submitted by multiple people within a company.

Starting April 2024, applicants who file all paper Form I-129 petitions requesting H-1B classifications must do so at a USCIS lockbox facility.

Current H-1B electronic registration process regulations are on the USCIS website.

Seek Legal Advice from an Immigration Attorney

The complex rules of the H-1B visa process can be challenging and overwhelming. If you are a foreign national looking to work in the United States under this visa category or a U.S. employer looking to hire an H-1B employee, legal advice from an immigration lawyer can make a significant difference. They can help you with the H-1B registration process, assess your eligibility to apply for this visa category, and increase your chances of success.