What is an H-1B visa?

The H-1B visa is a nonimmigrant employment classification that allows foreign nationals to work in specialty occupations in the United States. A specialty occupation is one that requires specialized knowledge, usually a bachelor’s degree or work experience equating to a degree. The job can be in multiple fields, the most common being:

• Mathematics and physical sciences
• Architecture and engineering
• Medicine and health
• Social sciences
• Theology and the arts
• Law, business, and education
• Accounting

United States Citizenship and Immigration Services (USCIS) provides 65,000 H-1B visas annually. An additional 20,000 are available for applicants with advanced US degrees.

Qualified H-1B workers can live and work in the US for up to three years. Three-year extensions are possible for up to six years. Additionally, H-1B status allows you to bring your dependents (spouse and children under 21) to the US on H-4 visas.

See also: Worldwide Visa Support for Dependents: A Guide for Businesses

While working on a H-1B visa, employees may change H-1B employers if they meet the requirements. Because the visa is dual intent, they may also seek permanent residence.

How does the H-1B program benefit employers?

The H-1B program allows US employers to import nonimmigrant talent otherwise not obtainable in the United States. The program’s provisions authorize the temporary employment of qualified workers who are otherwise not allowed to work in the country.

See also: The H-1B Visa: Everything You Need to Know (From Immigration Experts)

Certain laws exist to protect H-1B workers and similarly employed US workers from adverse effects of nonimmigrant employment. US employers looking to hire foreign talent may only do so for specialty occupations that require skills and knowledge difficult to find in the country.

Similarly, US employers must submit supporting documentation to the Department of Labor (DOL) showing that they will pay H-1B workers at least:

• Equal to the wage they pay other workers of similar qualifications and experience or,
• The prevailing wage of the position,
• Whichever is greater

Who qualifies for H-1B visa classification?

Both the worker, hiring company, and the role must meet the following four requirements to apply for for the H-1B classification:

✔️ The candidate has a job offer from a US employer

To get considered for a H-1B visa, the candidate must have a bona fide job offer from a US employer. This is best demonstrated through a written contract, although an oral agreement summary may suffice. As the employer, you must demonstrate a need for the foreign worker and their skills.

✔️ The offer is for a specialty occupation

The job offer for a H-1B visa must be for a specialty occupation. This requirement falls on the employer as they must post an open job listing and sponsor a foreign worker. To be considered a specialty occupation, the position must meet at least one of the following criteria:

• Its normal minimum entry requirement is a bachelor’s or higher degree or its equivalent
• The degree requirement is common to the industry in similar positions across different organizations
• The role is so unique and complex that it can only be performed by a worker with a degree
• The position involves particular specialized or complex duties that usually require the knowledge obtained from a bachelor’s or higher degree

✔️ The applicant is qualified to offer services in a specialty occupation

Foreign workers must be qualified to provide the services in the specialty occupation for which they have a job offer. Depending on the position, they must hold a/an:

• US bachelor’s or higher degree from an accredited university or college
• Foreign degree from an accredited university or college that is equivalent to a US bachelor’s or higher degree
• Unrestricted state certification, license, or registration that authorizes you to offer services in the specialty occupation and be employed for it
• Progressively responsible experience or specialized training equivalent to a US bachelor’s or higher degree

✔️ There exists a valid relationship between the candidate and the employer

An applicant cannot apply for an H-1B visa based on a general open job listing. The applicant (beneficiary) and a US employer (the petitioner) must have a valid relationship.

To determine this, the USCIS assesses whether you will be the petitioner’s employee or report to them.

The petitioner must have employer control over how you complete your duties.

The USCIS may rule that a valid relationship exists between you and the employer if:

• The petitioner can hire, pay, and fire you
• The petitioner assesses your work
• The petitioner provides you with employee benefits

✔️ You appear on the petitioner’s tax information

This requirement is crucial for off-site, remote, or hybrid roles. Even if the employee and employer will not work in the same premises, the employer must control the employee’s work schedule. Both parties must also have regular contact through work assignments, assessments, or payment.

Can you qualify for the H-1B classification without a degree?

Yes. Sometimes, candidates may qualify for a H-1B through work experience, training, and education. They must demonstrate that their work experience includes the practical and theoretical application of specialized knowledge and is equivalent to the required degree. They can do this by presenting the following evidence:

• Proof of licensure
• Recognition from industry experts in your field
• Proof of remarkable achievements and significant contributions to your field
• Membership in a recognized professional association

The number of years of experience must be equivalent or comparable to the degree duration normally required for the specialty occupation.

How do you apply for H-1B status?

Applying for H-1B petitions can be done in three stages:

Stage 1: New H-1B candidates must enter the H-1B lottery in the spring

The infamous H-1B lottery is a requirement for most new H-1B candidates (except candidates with job offers from cap-exempt employers such as universities, nonprofits, and government organizations). The lottery happens each year in March or April. A small percentage of H-1B lottery applicants are selected, and those who are not selected cannot proceed with the H-1B process. Applicants selected in the lottery can proceed with stage 2.

Stage 2: Petitioner or agent submits LCA

The employer or petitioner initiates the H-1B application process by submitting a Labor Condition Application LCA to the DOL for certification. Learn more about labor condition applications on the Foreign Labor Certification page.

Stage 3: Petitioner or agent submits Form I-129

Once the DOL certifies the LCA, the petitioner files Form I-129 (Petition for a Nonimmigrant Worker) online and submits it to the USCIS along with the certified LCA.

Stage 4: Beneficiary applies for visa

If the USCIS approves the Form I-129, a foreign worker or beneficiary located outside the US applies for an H-1B visa with the US Department of State (DOS) at a US embassy or consulate. The beneficiary then applies for admission into the country on H-1B classification at a US Customs and Border Protection (CBP) port of entry.

The employer is responsible for most of the application fees. The USCIS recently published fee changes for the H-1B petition application. Learn how they may affect your application here.

How long will it take to get your H-1B visa?

It can take several weeks to nine months to get an H-1B visa. The duration of your application process depends on different factors, including:

• Whether you have a certified LCA (US employer)
• What type of H-1B visa you want (regular, advanced degree, cap-exempt)
• The USCIS service center you use
• Whether you pay for premium processing
• The US consulate you apply to

Can you change employers while on H-1B?

Yes. The H-1B visa allows transfer to a different employer without repeating the application process or leaving the country.

To qualify, the candidate must not have worked without authorization in the US from the time of their last admission.

The new employer must file a non-frivolous Form I-129 petition on the candidates behalf before the current H-1B status expires.

See also: How to Get a US Work Visa for a Foreign Worker

Streamline your H-1B petition application with Deel

The H-1B visa allows you to onboard foreign talent onto your team or work in specialty occupations in the United States.

Whether you are an employer looking for qualified talent or a worker looking for new opportunities, the immigration journey can be cumbersome. You must navigate countless laws and eligibility requirements, file petitions and certification requests, and pay ever-changing fees.

Deel’s in-house immigration support handles the entire application process, from sponsoring to onboarding. We also recently acquired a leading US immigration provider, Legalpad, to help us better meet your immigration needs. Contact us today for expedited help in getting your H-1B visa.

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