The H-1B Visa: Everything You Need to Know (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.

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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)

• 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

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FAQs

Are family members of H-1B workers eligible for nonimmigrant classification?

Yes. Spouses and unmarried children under 21 can be eligible for H-4 classification. This classification allows them to accompany or join the H-1B visa holder in the US during their stay.

H4 visa holders are also eligible to study in the US and apply for employment authorization, subject to certain restrictions.

Can a foreign national change jobs on an H-1B visa?

Yes, a foreign national on an H-1B visa can change jobs. Still, the worker and new employer must follow some specific procedures and conditions must be followed:

New H-1B petition by the new employer: Before starting the new job, the new employer must file a new H-1B petition on behalf of the foreign national. This is necessary because H-1B visas are employer-specific, meaning they are tied to the employer who filed the original petition.

Note: Transferring to a new employer does not subject the foreign national to the H-1B cap again. Workers can change jobs without worrying about the annual H-1B visa lottery limit.

Continued eligibility: The new job must qualify as a specialty occupation, the same as the initial H-1B requirements. The foreign national must also meet the qualifications for the new position.

Status maintenance: The foreign national must maintain their H-1B status by continuing to work for their current employer until the new H-1B petition is filed. They cannot start the new job until the new petition is filed, but not necessarily approved. 

Gap in employment: It's advisable to avoid any significant gaps in employment between the old and new jobs, as this can impact H-1B status.

Timely filing: The new H-1B petition should be filed before the termination of the current job to ensure continuous lawful status.

Changing jobs on an H-1B visa is common, but it requires careful coordination to ensure compliance with immigration laws and maintaining legal status in the US. Deel can help with that!

What happens if the employment is terminated?

If an H-1B visa holder's employment is terminated, several significant implications and required actions come into play:

Status loss: The H-1B visa is tied to the employer, so termination of employment effectively means the loss of H-1B status. The worker has a grace period of 60 days to exercise one of the three below options, or until the I-94 expires (whichever one occurs first): 

• Find another H-1B employer: The individual can look for another employer willing to file an H-1B petition on their behalf. Under the H-1B portability rules, the visa holder may begin working for the new employer as soon as the new H-1B petition is filed with USCIS without waiting for approval
• Change of status: Apply for a change of status to another visa category, if eligible, such as a student visa (F-1) or a dependent visa (if applicable)
• Depart the US: If the individual cannot find another employer or change their visa status, they should prepare to leave the US to avoid overstaying, which can have serious consequences for future US immigration
  
  

H-1B visa holders need to act quickly after employment termination to maintain legal status and to seek legal advice if there are any uncertainties about their situation.

Notification to USCIS: The employer must notify USCIS of the termination of employment. This notification can result in the revocation of the H-1B petition.

Return transportation: The employer must offer to pay for the reasonable cost of return transportation to the visa holder's last place of foreign residence if the employment is terminated before the end of the authorized period of stay.

Severance and other benefits: Any severance package, benefits, or rights would be governed by the terms of the employment contract and state or federal law, not immigration law. 

See also: H1B layoff: Here’s what you should know.

Can the H-1B visa holder apply for a green card while on an H-1B visa?

Yes. After sponsoring an H-1B, employers can continue to support their employee's immigration journeys by supporting the green card process.

The H-1B is a dual-intent visa, which allows visa holders to enter the US to become green card holders. This makes the overall process of becoming a permanent resident, and eventually a US citizen, easier. 

And it also means that H-1B visa holders can travel internationally with a pending green card application without intent issues. 

What is the H-1B1 visa?

The H-1B1 is a US nonimmigrant visa for Chile and Singapore nationals working in specialty occupations. The annual cap for H1B1 visas is 6,800 — 1,400 from Chile and 5,400 from Singapore.