H1-B Visa

H1-B Visa

The H1-B visa is a nonimmigrant visa that allows US companies to employ foreign individuals in professional assignments on a temporary basis. An individual hired on an H1-B visa can stay in the US for a period of up to three years, which can be extended to a maximum of six years.  Additional extensions may be possible for certain individuals who have pending labor certifications. 

Eligibility requirements

Strict eligibility requirements must be met in order to obtain an H1-B visa, which govern the nature of the job as well as the professional qualifications of the prospective employee. The job must  qualify as a “specialty occupation” and therefore has to require, at a minimum, a bachelor’s degree in a related field. Therefore, in order to qualify for an H1-B visa, the prospective employee must generally have completed at least a bachelor’s degree in a related field, as required by the specialty occupation, the employer, and/or the complexity of the specific job. This degree may have been  obtained in the United States, or, if obtained abroad, it has to be at least the equivalent of a U.S. bachelor’s degree.    If the degree is deemed less than the equivalent of a U.S. bachelors degree, three years of well-documented specialized training or employment in the field may be “substituted” for each year of education  that the foreign employee is considered to lack.  

Application process

In order to obtain an H1-B visa, the employer needs to file a certification of a Labor Condition Application from the United States Department of Labor. The Labor Condition Application attests to the employer’s   compliance with the salary, notice,  and work conditions required by law. The employer must certify that  the H1-B recipient will receive the same salary and benefits package as U.S. workers in similar positions, and demonstrate that the offered compensation is equal to or more than the “prevailing wage” in the field. Once the Department of Labor certification is obtained, the employer must submit this certification along with an I-129 form, Petition for Nonimmigrant Worker to the United States Citizenship and Immigration Services (USCIS).  The prospective employee may either change status from an existing immigration status in the U.S., or present the approved H1-B petition (I-129) at a U.S. consulate abroad to receive an H1-B entry visa.

 Please note that the employer must not only pay the employee the required wage, but must also pay many of the costs and fees associated with the petition process.   

H1-B numerical cap

The amount of H1-B visas granted annually is limited by statute.  Currently, the number of available H1-B visas is limited to 65,000 for each fiscal year. However, the first 20,000 beneficiaries who have obtained a U.S. Master’s Degree are exempt from this cap. Also, there are other exceptions related to the nature of the employer.  For example, institutions of higher education, certain governmental research institutions or nonprofit organizations are not subject to the numerical cap.  An employer may file no more than six months prior to the anticipated start date for the position.  If the statutory cap for the current fiscal year has been met than the earliest start date possible would be the first day (October 1) of the following fiscal year.  Thus many employers submit their applications on April 1st.

 Family of H1-B visa holder

H1-B workers can bring their spouse and children under the age of 21.   These family members are granted H-4 nonimmigrant status. With limited exceptions, a person holding H-4 status is not eligible for a work permit. 

How can we help?

Our attorneys have the knowledge and the legal skills to assist you through every step of the H1-B visa application process. We can assist both employers and prospective employees in assessing their eligibility and in providing efficient legal solutions for issues that might arise during the application process.

The content of this website is meant only to acquaint you with general information about immigration. This information is not legal advice and is not a substitute for having a consultation with an attorney. If you have additional questions or would like to schedule a consultation, please contact us.