H-1B Visa: Complete Guide from Immigration Experts

Perhaps you’re a worker hoping to get your hands on an H-1B visa or a company looking to support a worker throughout the H-1B visa process. If so, this article will walk you through everything you need to know to navigate the H-1B visa process, from meeting the eligibility criteria to navigating the H-1B application steps, supporting dependents, and everything in between. 

Let’s jump in!

What is the H1B visa?

The H-1B visa is a temporary nonimmigrant visa for foreign workers in specialty occupations who have found employment in the US. H-1B specialty occupations may include architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts. 

85,000 new H-1Bs are issued every year through the infamous H-1B lottery. The lottery happens each year in March or April. If you miss the two or three weeks when the lottery is open, you must wait until the following year.

A small percentage of H-1B lottery applicants are selected and receive H-1B approval. Those that are successful can only begin work on the 1st of October. 

Those who are not selected cannot proceed with the H-1B process.

Candidates with job offers from cap-exempt employers can bypass the H1-B lottery. Cap-exempt employers include educational, nonprofit, and governmental organizations.

It is the employer's responsibility to file for an H1B visa on behalf of a worker. 

See also: 10 Things to Know About H-1B Visa Sponsorship: A Guide for US Companies.

Who can get an H1B visa?

The H-1B classification caters to three categories of international individuals, commonly known as 'beneficiaries':

• Those in specialty occupations: Primarily, this group consists of individuals who intend to engage in employment within the US in a “specialty occupation.” Such occupations typically require a bachelor's degree (or a higher educational qualification) in a specific area of expertise. This category represents the most prevalent type of beneficiaries under the H-1B classification
• Those in department of defense cooperative research and development projects: This category includes those who are set to be employed in collaborative research and development projects managed by the US Department of Defense
• Fashion models: The third category encompasses fashion models who possess outstanding merit and proficiency in their fielD

What are the eligibility requirements for the H-1B visa?

The worker and employer must meet the following key criteria to qualify for the H-1B program:

Employer-employee relationship

The foreign national should maintain an "employer-employee relationship” with the US employer filing the petition (known as the "petitioner"). This implies that the petitioner typically has the authority to hire, pay, dismiss, oversee, or control the work of the beneficiary

Specialty occupation requirements

The foreign national is required to engage in a "specialty occupation" within the US, such an occupation that requires:

• Specialized knowledge both in theory and practice; and

• A bachelor’s degree, master’s degree, or a higher degree in a specific specialty is a basic requirement for entering the occupation

Here is an incomplete list of specialty occupations for the H-1B visa:

• IT/Computer Professional

• University Professor or Teacher
  Engineer

• Healthcare Worker

• Accountant

• Financial Analyst

• Management Consultant

• Lawyer

• Architect

• Nurse

• Doctor

• Physician

• Surgeon

• Dentist

• Scientist

• Systems Analyst

• Journalist

• Editor

• Foreign Law Advisor

• Psychologist

• Technical Publication Writer

• Market Research Analyst

See also: What are H-1B Specialty Occupations?

Paid actual wage or prevailing wage

Employers are required to compensate foreign nationals with the higher of the "actual wage" or "prevailing wage" for their occupation. 

• The actual wage is determined by the employer's payment to employees holding similar positions with comparable qualifications and experience

• The prevailing wage is determined by the wage rate stipulated in a union contract or the average wage rate paid to employees working in similar positions within the same geographic location

Foreign national qualifications

To sponsor a foreign national for a specialty occupation position, the employer must prove that the candidate meets the minimum educational and/or experience criteria for the job. 

This entails demonstrating that the candidate has earned a bachelor's degree (or higher degree) in the relevant field or has adequate, relevant experience equivalent to the minimum educational requirements for the position and possesses the necessary qualifications to fulfill the specialty occupation position.

See also: H-1B Regular Cap vs Master’s Cap.

What is the process to obtain an H-1B visa?

To obtain the H-1B classification, several steps must be followed depending on whether the employer is subject to the cap or cap exempt. 

Subject to the cap (H-1B lottery route)

If the employer is subject to the cap, this means they do not operate in a specialty sector such as an educational, nonprofit, or governmental organization and must file an online form during the H-1B lottery registration period in March. After the registration process closes, the US Citizenship and Immigration Service (USCIS) conducts a lottery to select registrations. 

If USCIS selects a registration filed by the employer, the employer has a 90-day window to file an H-1B cap petition Form I-129 (petition for a nonimmigrant worker) for the foreign national named in the registration, and pay any associated filing fees. 

Check the USCIS website for processing times to understand when to expect visa issuance.

Cap-exempt

If the employer is not subject to the H-1B lottery cap, they are cap-exempt. Cap exempt means they operate in a specialty sector such as an educational, nonprofit, or governmental organization and, therefore, do not need to file via the H-1B lottery.

Employers with cap exemptions can file petitions for foreign national employees anytime during the year. They can jump straight to the next step: obtaining a certified Labor Condition Application (LCA) from the US Department of Labor (DOL). 

Obtaining a certified LCA requires the employer to attest to the working conditions and wages of the intended foreign national. The employer must also post copies of the LCA or notice of filing at relevant work locations to notify other American employees that it will be filing the LCA with the US Department of Labor. This process ensures that no US workers are willing or qualified to take the job.  

Once the LCA is certified, the employer can file Form I-129 with USCIS, providing information and required documentation to demonstrate that the position and foreign national qualify for the H-1B classification. 

Premium processing is available for Form I-129 petitions filed with USCIS for the H-1B classification, which guarantees processing within 15 calendar days for an additional fee.

Check the USCIS website for processing times.

Activating H-1B status

If the H-1B petition is approved, both cap and cap-exempt candidates must activate their H-1B status. The best way to do this will depend on where the candidate is, when the visa petition is filed, their immigration status, and their travel plans.

Here are the options: 

• Option one: The candidate already resides in the US on another visa (change of status)

If the foreign national is currently in the US and on another valid nonimmigrant status visa (e.g., F-1, L-1), at least until October 1, you can file the H-1B cap petition as a “change of status” petition, meaning that the H-1B status will automatically take effect on October 1, or on the date the petition is approved, whichever date is later. 

Suppose the foreign national is currently in the US in F-1 status — including an optional practical training (OPT) or STEM extension — but their status will expire before October 1. In that case, they may be eligible for a cap gap extension of their F-1 status to that date.

• Option two: The candidate is outside of the US at the time the H-1B petition is filed (consular processing)

If the foreign national is not in the US when the employer files the H-1B petition or does not have another valid status until October 1, the H-1B petition is filed as a “consular notification” petition. 

In this situation, to activate H-1B status after the H-1B petition is approved, the foreign national must enter the US with the H-1B approval notice from USCIS and a valid H-1B visa stamp in their passport.

Foreign nationals must bring the original H-1B approval notice and a copy of the H-1B petition. In addition, foreign nationals will need to review the US embassy or consulate’s website to learn what specific supporting documentation is required, as every US embassy or consulate has different application procedures and requirements.

Note: The earliest the foreign national can enter the US to activate H-1B status is ten days before the starting validity date on the H-1B approval notice.

Canadian citizens are exempt from the visa requirement and can activate their H-1B status by entering the US with the H-1B approval notice. 

See also: Change of Status vs. Consular Processing.

What are the limitations of the H-1B visa?

In addition to the H-1B visa being limited to an annual cap of 85,000 new visas in each fiscal year, you should be aware of a couple more limitations to the H-1B visa. 

Time limitations

The H-1B classification can be granted for a period of up to three years and can be extended in increments of up to three years as well. An employer and visa holder can initiate the H-1B extension up to six months before the expiration of the H-1B status.

The maximum duration a foreign national can hold the H-1B classification is six years, which includes the time spent in the H-1B, L-1A, and L-1B classifications. 

Once an individual reaches the maximum H-1B classification period of six years, they can either:

• Change to a different nonimmigrant classification
• Obtain a green card for lawful permanent residence to continue working in the US
• Leave the US and remain outside for one continuous year before obtaining a new H-1B visa from the available 85,000 each fiscal year

Extensions beyond six years

Sometimes, a foreign national can extend their H-1B classification beyond the maximum limit of six years. However, this is possible only if the foreign national has: 

• An approved Form I-140 (immigrant petition for alien worker) but cannot obtain lawful permanent residence (a green card) due to a backlog of immigrant visas in their country of birth; or
• The foreign national has a labor certification and/or I-140 (immigrant petition for alien worker) filed on their behalf at least 365 days before the end of their six-year H-1B classification period

H-1B lottery, visa applications, and transfers are simple with Deel

Avoid the hassle and let Deel’s immigration experts guide you through the H-1B lottery process. If your candidate is selected, we will take care of the paperwork and complexities of the visa application.

Our expertise in US immigration law is unmatched, and our results speak for themselves:

• ✅ 90% approval rate: We make the visa process a success story

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• 👩‍⚖️ Experts in immigration law: Up-to-date, savvy guidance

• 🤝 1000+ clients: A track record of guiding clients to visa success

Schedule a free consultation with our Mobility Account Executives now

Do you need to transfer a new hire's H-1B visa from their former employer to their new employer? We can do that, too, no problem. We handle all the paperwork so you can focus on your onboarding plan. 

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