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The H-1B Visa Explained – Requirements and Official Documentations

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The H-1B visa is a nonimmigrant classification that applies to people who wish to perform services in a specialty occupation, services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project, or services as a fashion model of distinguished merit or ability.

H-1B Visa Application

The H1B work visa is initiated by an employer in the United States. The employer must have an open job position and they cannot find an American employee who is qualified enough to complete the work. This can be any position that requires higher education degrees or that is specialized enough in skills that not many people can do it successfully.

However, continue reading this article for more information on everything you need to know about the H-1B visa.

What is the H-1B visa?

The H-1B visa is a nonimmigrant work visa that allows companies and other employers in the United States to temporarily employ foreign workers in occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or it’s equivalent. This can consist of professions in areas such as IT, financing, design, architecture, or even more. It allows US employers to hire foreign professionals to work in the United States when qualified Americans are not available.

Moreover, the H-1B visa holder can work only for the sponsoring employer, or the visa will be revoked. The visa was created in 1990 when Congress expanded the 1965 Immigration and Nationality Act and is not a direct path to citizenship.

The H-1B visa program is probably the most well-known US federal employment visa, and possibly the most controversial. Applying for a non-immigrant visa is generally faster than applying for a US green card (immigrant visa). Therefore, the H-1B visa is popular for companies wishing to bring in a foreign staff for long-term assignment in the United States.

The H1B visa is also called a Person in Specialty Occupation Visa. In order to be eligible for the H-1B visa, you will need:

  • A job offer from a U.S. employer for a role that requires specialized knowledge.
  • Proof of a bachelor’s degree or equivalent in that field
  • Your employer must show that there is a lack of qualified U.S. applicants for the role

However, individuals cannot apply directly for an H-1B visa. Instead, the US employer must petition for the entry of the employee. Which then takes us to the H-1B visa cap.

Understanding the H-1B Visa Cap (Lottery)

The H-1B visas are subject to an annual visa cap each financial year. US employers may file an H-1B petition no more than six months before the employment start date requested for the beneficiary. Besides, the specific filing period and filing location for your petition will be located on your H-1B Registration Selection Notice.

As a foreigner, before you can enter the United States under the H-1B classification and begin work. You may need to register with U.S. Citizenship and Immigration Services (USCIS) and be selected to apply. However, because there is a lot of demand for this visa, there is a cap on the number of visas that can be issued each year.

Current immigration law allows for a total of 85,000 new H-1B visas to be made available each government fiscal year. This number includes 65,000 new H-1B visas available for overseas workers in specialty (professional) level occupations with at least a bachelor’s degree. With an additional 20,000 visas available for those specialty workers with an advanced degree from a US academic institution.

Eligibility Criteria for H-1B Visa

However, the general requirements for the visa are as follows:

Firstly, the occupation requires:

  • Theoretical and practical application of a body of highly specialized knowledge; and
  • Attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

H-1B Specialty Occupations

Then, the position must also meet one of the following criteria to qualify as a specialty occupation:

  • Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the particular position
  • The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, the job is so complex or unique that it can be performed only by an individual with a degree
  • The employer normally requires a degree or its equivalent for the position
  • The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

Moreover, for you to qualify to perform services in a specialty occupation you must meet one of the following criteria:

  • You must hold a U.S. bachelor’s or higher degree required by the specialty occupation from an accredited college or university
  • Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree required by the specialty occupation from an accredited college or university
  • Hold an unrestricted state license, registration, or certification that authorizes you to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment.
  • Have education, specialized training, and/or progressively responsible experience that is equivalent to the completion of a U.S. bachelor’s or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

The H-1B Visa Application Process

H-1B cap-subject petitions, including those eligible for the advanced degree exemption. May not be filed unless based on a valid and selected registration for the beneficiary named in the petition.

However, before you can enter the United States under the H-1B classification and begin work. You may need to register with U.S. Citizenship and Immigration Services (USCIS) and be selected to apply. Note your registration must be selected if you want to apply for an H-1B visa unless you are eligible for an exemption.

USCIS will let you know if you have been selected once the registration period has finished. Then, once you’ve been selected to apply for the H-1B visa. Your employer can begin the process by filing a petition on your behalf.

Petition Filing Process

Firstly, your employer will need to submit a Labor Condition Application (LCA) to the Department of Labor (DOL) for Certification. However, the employer must apply for and receive DOL certification of an LCA. This is to confirm that your employer will pay you the same wage as other similarly qualified workers in the same geographic area and that your working conditions will not affect their other employees.

Secondly, once the LCA has been certified by the DOL. Your employer should file Form I-129, Petition for a Nonimmigrant Worker, with the correct USCIS service center. Moreover, the DOL-certified LCA must be submitted with Form I-129 along with any fees and additional documentation. Which may include evidence of your education, any training certificates or professional membership documents if relevant, your resume, a confirmation letter of employment, a letter of support, and any necessary fees.

Finally, once the Form I-129 petition has been approved. You (the prospective H-1B worker who is outside the United States) may apply with the U.S. Department of State (DOS) at a U.S. embassy or consulate abroad for an H-1B visa (if a visa is required). However, regardless of whether a visa is required, you must then apply to U.S. Customs and Border Protection (CBP) for admission to the United States in the H-1B classification.

Family and Dependents of H-1B Visa Holders

Your spouse and unmarried children under 21 years of age may be able to accompany you by seeking admission in the H-4 nonimmigrant classification. However, beginning May 26, 2015. Certain H-4 dependent spouses of H-1B nonimmigrants can file Form I-765, Application for Employment Authorization. As long as the H-1B nonimmigrant has already started the process of seeking employment-based lawful permanent resident status.

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Period of Stay for Visa Holders

As an H-1B specialty occupation worker, you may be admitted for a period of up to three years. Your time period may be extended, but generally cannot go beyond a total of six years.

In conclusion, note that your employer will be liable for the reasonable costs of your return transportation if your employer terminates your employment before the end of your period of authorized stay. Your employer is not responsible for the costs of your return transportation if you voluntarily resign from your position.

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