H1B Working Visa

The H-1B visa is a type of nonimmigrant visa which allows foreign nationals to work in the U.S. and perform services in a prearranged, professional job.
The key characteristics of the H-1B visa are:

1. The job must be in a specialty occupation that requires a “theoretical and practical application of a body of highly specialized knowledge”
2. The foreign national applicant must have a bachelor’s degree or its equivalent in the required field

Note: The H-1B work visa allows an organization with an IRS Tax Number/ Federal Employer Identification Number to employ a foreign national for up to six years.

A specialty occupation is a job that requires:

1. the theoretical and practical application of a body of specialized knowledge and
2. attainment of a bachelor’s degree or its equivalent in a specific specialty, at a minimum, for entry into that occupation.

In order to qualify as a specialty occupation, the proposed position should meet at least one of the following criteria:

1. The minimum entry requirement for the position is normally a bachelor’s degree or higher in a specific field.
   Examples:

   a. a physician needs to have an M.D. or it’s foreign equivalent to practice

   b. an accountant needs to have a Bachelor’s degree in Accounting or a closely related to work as an accountant

2. The degree requirement is common to the industry or the job is so complex or unique that only a person with at least a bachelor’s degree in a specific field can perform the job duties.
3. The employer’s normal and regular requirement for the position is a bachelor’s degree.
4. The knowledge required to perform the specialized and complex duties can only be gained through attaining a bachelor’s degree or higher.

Note: Architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.

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Check My Eligibility

To qualify for an H-1B, you must:

1. Demonstrate that you have the ability to work in the specialty occupation that requires the theoretical and practical application of a body of highly specialized knowledge
2. Have a U.S. bachelor’s degree or its equivalent in a specific specialty related to the specialty occupation
   Note: Equivalency to a bachelor’s may be based on education, experience and/or a combination of the two. When calculating equivalency, USCIS considers 3 years of qualifying, progressive experience to be equivalent to 1 year of university education. Therefore, an individual with 12 years of qualifying, progressive experience may have the equivalent of a U.S. bachelor’s degree and can apply for H-1B.

Note: This classification also applies to Government-to-Government research and development, or co-production projects administered by the Department of Defense

The benefits of an H-1B for a foreign national include:

1. Live and Work in the U.S.: The H-1B is a great option for foreign nationals who to advance their careers in the U.S.
2. Keep your family together: H-1B holders can bring their spouse and children under 21 to stay with them in the U.S. in H-4 status. H-4 holders can attend school, through university, in the U.S. without restriction.
3. Dual Intent and Green Card: The H-1B is a dual-intent visa category. This means that the H-1B category allows foreign nationals to live and work in the U.S. while actively pursuing options for permanent residency for themselves and their families.
4. Portability and Flexibility: An H-1B holder is free to change jobs as long as the new employer files an H-1B petition on the employee’s behalf. Once the petition is filed, the H-1B holder can usually work for the new employer immediately, without waiting for the H-1B to be approved by USCIS.
5. Multiple employers: H-1B holders can work for more than one employer through a Concurrent H-1B.

The benefits of the H-1B for employers include:

1. Global Talent Pool: The H-1B allows employers to bring the best and brightest, skilled professionals from all over the world.
2. Addressing Skills Shortages: The H-1B program allows employers to fill positions for roles where there may be a skills gap or shortage in the U.S.

The limitations of H-1B visa include:

1. The H-1B Cap and Lottery: An annual numerical limit is imposed on the number of H-1B visas issued during a fiscal year. Currently the cap is only 65,000. Because of the large number of applications that USCIS receives in this category, USCIS must run a “lottery” to determine who can file an H-1B petition every year.However, the quota only applies to new H-1B applications, and does not apply to H-1B status holders who are seeking extensions or change of employer
2. Temporary Duration: The maximum duration of H-1B is 6 years, which is issued in 3 year increments. Extension beyond the 6th year are only available if the foreign national has a pending or approved green card application.
3. Spouse Work Authorization: H-4 spouses cannot work in the U.S. except in limited circumstances where the H-1B worker has a pending or approved I-140.
4. Wage Requirements: Employers must generally pay at least the prevailing wage or higher depending on the geographic area. Prevailing Wages do not always reflect real-world wages for many employers.

H-1B’s can be issued for up to 3 years and can be extended to a maximum of 6 years.

Each time a foreign worker changes employers, the new employer can request up to 3 years as long as it’s within the maximum 6 years.

For extensions beyond the 6 years, the H-1B professional must remain outside the U.S. for at least one year before becoming eligible to enter the H-1B Cap again. Alternatively, the H-1B worker may be eligible for extension beyond the 6th year if they have a green card petition pending.

Certain foreign nationals working on Defense Department projects may remain in H-1B status for 10 years (H-1B2 DOD Cooperative Research and Development Workers)

Yes, you may bring your dependents on H-1B visa. Your spouse and unmarried children under 21 years old are entitled to an H-4 visa and they can stay as long as you maintain valid H-1B status.

H-4 dependents can attend school (elementary school through university) but cannot work except in very limited circumstances. H-4 spouses can work on an H-4/EAD if the H-1B worker has a pending or approved labor certification and/or I-140 petition. To be eligible to apply for H4/EAD, the H-4 dependent must be the spouse of an H1B nonimmigrants who:

• Is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
• Has received one-year extension of H1B status beyond the sixth year under the American Competitiveness in the 21st Century Act of 2000, based on a filed I-140 or labor certification.

H-1B workers who have dependent parents or other household members may be able to bring those family members to the U.S. with a B-2 visa for Cohabiting Partners, Extended Family Members and Other Household Members Not Eligible for Derivative Status. The B-2 applicant must be able to show they have a foreign residence they don’t wish to abandon, they are coming to the U.S. to reside temporarily with the H-1B worker, and that they cohabit or have lived with the H-1B worker for an extended period of time.

H-1B workers can also bring domestic workers who work for them abroad to the U.S. on a B-1 visa.

An individual may not apply for H-1B visa for themselves. The H-1B work visa requires a sponsoring U.S. employer, called a “Petitioner”, to file the Form I-129 petition with U.S. Citizenship & Immigration Services on behalf of the potential employee, called a “Beneficiary”.

If the Beneficiary is outside the U.S. when the H-1B petition is approved, they can apply for the H-1B visa at a U.S. Consulate and can then enter to the U.S to begin working in H-1B status.

If the Beneficiary is in the U.S. already in valid nonimmigrant status, their status may automatically change to H-1B and then can begin employment.

The Forms to be filed for an H-1B petition are:

1. ETA Form 9035, Labor Condition Application
2. The Form ETA 9035 or LCA is filed through Dept. of Labor’s Foreign Labor Application Gateway or “FLAG” website. It must be submitted and certified before an H-1B petition can be filed. All H-1B petitions must include a certified LCA. The LCA contains basic wage and location information about the proposed H1B employment, including the rate of pay, period of employment, and work location(s). The LCA also contains 4 important attestations that the employer must make, ultimately ensuring that US workers will note be disadvantaged by the hiring of an H-1B worker. Through this application the employer assures the DOL that he/she will provide the H-1B worker with a fair salary and equal benefits, similar to those which are provided to U.S. workers.
3. Form I-129, Petition for Nonimmigrant Worker: The Form I-129 must be submitted to USCIS with the required filing fee, supporting documentation and Certified LCA. The Form I-129 can be mailed to the appropriate USCIS Lockbox or can be filed online at MyUSCIS.

There are 4 specific attestations that an employer makes when submitting the LCA:

• It will provide the H1B employee the same benefits offered to US workers and pay the H1B employee the higher of: the actual wage paid to others by the employer who have similar experience and qualifications for that specific job in the company OR the prevailing wage for the occupation in the area of employment.
• It will provide the H1B employee working conditions that will not adversely affect the working conditions of workers similarly employed in the area. Working conditions commonly refer to matters including hours, shifts, vacation and fringe benefits.
• There is no strike or labor dispute at the place of employment in the same occupation listed on the LCA.
• It has provided a notice of this filing to the union bargaining representative (if applicable), or if there is no bargaining representative or union, directly to the workers by posting a notice of filing in at least two conspicuous locations at the place of employment, for a period of no less than 10 business days. The H1B worker has also been given a copy of the LCA.

Additionally, once an LCA is submitted to the Dept. of labor, the employer must prepare and have available for public examination a “Public Access File” to document compliance with the Dept. of Labor’s requirements. The PAF must be maintained and be available for public inspection for at least one year beyond the dates of the employment on the LCA or for one year from the withdrawal of the LCA. The public access file must include:

• A copy of the certified LCA (with the employer’s original signature and LCA cover pages).
• Documentation of the wage to be paid to the H1B employee.
• Explanation of system used to determine the actual wage paid.
• Documentation regarding the prevailing wage and the wage source.
• Copy of notice to the union (if applicable) or workers (the Notice of Filing).
• Summary of the benefits plan offered to the H1B employee showing that it is the same as that offered to similarly employed U.S. workers and an explanation for how any variations, if any, are determined.
• Copy of certified LCA with signature of H1B employee as proof he or she received copy.
• Documentation regarding any adjustment to the wage (e.g., annual raise or cost of living increase).
• If the employer is H1B dependent or have been found to be willful violators of the LCA regulations, proof of efforts to recruit US workers.
• After the creation of the PAF, where the employer undergoes a change in corporate structure, and does not choose to file an amended petition for each H1B it acquires, a sworn statement from the new employer that it accepts all obligations under the LCAs filed by the predecessor employer and a list of the affected LCAs.

An employer runs the risk of becoming an ‘H-1B dependent employer’ if they hire too many H-1B employees. Employers are H-1B dependent if they fall into any one of the following three categories:

1. An employer has 25 or fewer full time employees of which more than seven are H-1B employees
2. An employer has between 26 to 50 full time employees of which more than 12 are H-1B employees
3. An employer has more than 50 full time employees of which 15% or more are H-1B employees

Employers who are H-1B dependent must make additional attestations when filing an LCA- namely they need to declare that no US workers have been displaced or laid off in the 90 day period before and after filing the H-1B petition, and H-1B dependent employers must make a “good faith effort” to recruit U.S. workers for the position. An H-1B dependent employer can also hire “exempt” H-1B worker to avoid the additional attestation requirement. An “exempt” H-1B worker is one that is paid at least $60,000 per year or holds a Master’s degree or higher in a field related to the proposed job.

Relevant factors in determining prevailing wage include:

1. Job title
2. Educational and work experience requirements
3. Job duties
4. Job location
5. Labor contract terms

When filing an H-1B petition, the Petitioner/employer must be able to show that they are a valid employer, that the offered position is in a specialty occupation and that the Beneficiary/potential H-1B employee meets the requirements of the position (i.e., the Beneficiary has the required degree in a specific field).

Suggested documents from the Petitioner/employer include (this list is not exhaustive):

1. Petitioner’s financial documents, like tax returns and/or bank statements
2. Petitioner’s incorporation documents
3. Company brochures or other information about the company
4. A detailed description of the position, which includes the job title, a description of the duties and responsibilities, offered salary and/or benefits and the minimum requirements for the position.

Suggested documents from the Beneficiary/H-1B worker include:

1. Beneficiary’s degree certificate
2. Credential evaluation for the degree and/or experience
3. Professional licenses, if required to perform the offered position
4. Beneficiary’s passport
5. If the Beneficiary is in the U.S., copies of all prior USCIS approval notices and/or visas to evidence continuous maintenance of valid nonimmigrant status

Premium Processing is an optional service provided by USCIS where an additional fee is paid to expedite the processing of certain USCIS petitions, including the Form I-129 for H-1B petitions. This service guarantees that USCIS will provide a response (Approval, Request for Evidence or Notice of Intent to deny) within 15 calendar days.

Employers may request Premium Processing by filing a completed Form I-907, Request for Premium Processing Service along with the Form I-129 or it can be submitted after the Form I-129 is filed.

There is an annual cap of 65,000 H-1B available for new, initial H-1B petitions. An additional 20,000 H-1B’s are allocated or set aside for individuals who have earned a U.S. Advanced Degree, i.e., for individuals with at least a U.S. Master’s degree or higher, called the Advanced Degree Exemption or “Master’s Cap”. Because demand for the H-1B usually far exceeds the number of H-1B’s available, USCIS has implemented a lottery system to choose who can get an H-1B visa every year.

To streamline the H-1B Lottery process, USCIS has implemented the H-1B Electronic Registration Process. Instead of employers having to prepare and file full H-1B petitions for the H-1B lottery, employers must now electronically register their H-1B beneficiaries with USCIS. USCIS uses the myUSCIS online portal for the electronic H-1B registration process. The registration must be submitted by the employer, an agent, or their attorney.

During the registration process, the employer (or their attorney) will be required to provide the company name, EIN/tax ID number, office address and authorized signatory contact information. For each beneficiary, the full name, date of birth, country of birth and passport number must be entered. The employer will also need to determine if the beneficiary is eligible under the Master’s Cap. It’s important to note that filing the Labor Conditions Application or LCA is not required prior to the electronic registration process.

The H-1B Electronic Registration window must be open for period of at least 14 calendar days and is generally run in March. Those selected in the lottery are generally notified by the end of March and can file H-1B petitions starting on April 1.

Starting in 2024, USCIS transitioned to a “Beneficiary centric” Registration process. What this means is that regardless of how many different employers file an H-1B registration for a specific individual, he or she will only be counted once in the lottery. If that individual is picked, any employer who filed a registration for that person proceed to file an H-1B petition.

Note: There have only been a few times where USCIS did not have to conduct an lottery to select H-1B petitions, usually in years where the U.S. was suffering from severe economic downturns.

USCIS will first select petitions for the 65,000 “regular” cap. This will include those who were eligible for the Master’s Cap. Once USCIS has chosen sufficient registrations to meet the regular cap, USCIS will then select from the remaining eligible registrations, a number projected to reach the H-1B Master’s cap exemption.

You should try to get an H-1B as soon as it’s possible to do so! Because the H-1B Lottery is unpredictable and is a “lottery”, waiting until your OPT is going to expire is not ideal. If your employer is willing, they should be entering the H-1B lottery every year you are eligible to be entered.

H-1B Cap Gap refers to the special carve-out USCIS has created for F-1 visa holders, including those on OPT or STEM OPT, to allow them to remain in the U.S. legally if an H-1B petition has been filed for them.

Cap Gap was created to fill the gap between the expiration of an F-1 student’s status, OPT or STEM OPT and the start of the actual H-1B validity period on October 1. Under Cap Gap, if an F-1 students status ends between April 1 and September 30, and an H-1B petition is filed before their status ends, their F-1 status will automatically be extended until September 30.

This Cap Gap extension also applies to work authorization. If someone with valid OPT or STEM OPT has an H-1B petition filed before their work authorization expires, the OPT or STEM OPT will be automatically extended until September 30.

H-1B Cap Gap is automatic- absolutely no action is required on the part of the F-1 student.

An H-1B visa is a nonimmigrant visa issued by a U.S. Embassy or Consulate abroad. H-1B status is a nonimmigrant status issued by the USCIS to foreign nationals already residing in the U.S. or upon entry with an H-1B visa. Legal status allows you to stay legally within the U.S. while a visa allows you to seek entry into the U.S. legally.

An employer can file an H-1B petition (Form I-129) to extend H-1B status up to 180 days before the expiration of their worker’s H-1B status as long as the employee has time remaining within their allotted 6 years of H-1B.

An H-1B “Extension of Status” or “EOS” petition involves the same forms and documentation normally filed for an initial petition, including a certified ETA Form 9035/LCA and Form I-129 with all required supplements and Supporting Documentations.

As long as your H-1B EOS is filed before your current H-1B expires, you will be allowed to continue working for up to 240 days while the petition is pending.

If you have been offered employment from a new employer, the new employer must file a Form I-129 H-1B petition on your behalf with all required documentation, including a certified ETA Form 9035/LCA and Form I-129 with all required supplements and Supporting Documentation.

Under H-1B portability provisions, as long as you were maintaining H-1B status when the “transfer” petition is filed, you can begin working with the new employer as soon as USCIS receives the H-1B petition. You can continue working for the new employer until a decision is issued for the H-1B petition.

A new employer can request up to 3 years on a transfer petition or up to whatever time is remaining within your allotted 6 years of H-1B, whichever is shorter.

It depends and you have several different options.

If your current H-1B status/I-94 does not expire for at least 60 days, you will be given a 60-day grace period. During this period, you can choose to look for another job so you can “transfer” your H-1B, make preparations to leave the country, or apply for a Change of Status to another nonimmigrant visa category for which you qualify.

If your I-94/H-1B validity is less than 60 days, then that will be the maximum length of your grace period.

If you are able to find a new employer, the H-1B change of employer or “transfer” petition must be filed before your grace period expires.

If you are unable to find a new employer, it is suggested you change to B-2 status or prepare to leave the country to avoid being “out of status”.

The American Competitiveness in the 21st Century Act of 2000, which became effective on October 17, 2000, permits extension of H-1B status past the six-year limit where a labor certification has been pending for 365 days or longer, regardless of whether or not a Form I-140, Immigrant Petition for Alien Worker, has been filed, or where a Form I-140 has been pending for 365 days or longer.

You need to be paid in order to maintain valid H-1B status, unless you are in a period of unpaid vacation or authorized leave of absence.

If your employer refuses to pay you, it is advisable to immediately seek legal assistance. You may need to change status to avoid a prolonged period of unlawful status. You may also be able to file a complaint with the U.S. Dept. of Labor as your employer is violating the terms of the LCA.

Yes, you may apply for Adjustment of Status while on H-1B visa. You may be the beneficiary of an immigrant visa petition, or take other steps toward Lawful Permanent Resident status without affecting H-1B status. This is known as ‘dual intent’ in the immigration law. During the time your application for LPR status is pending, you may travel on your H-1B visa rather than obtaining Advance Parole or requesting other advance permission from USCIS to return to the U.S.

No, there are no travel restrictions on H-1B visa. You may travel outside the U.S. and reenter as many times during the validity period of the H-1B petition as long as you have a valid H-1B visa. If you are Canadian, you may travel outside and reenter the U.S. as long as you have a valid H-1B approval notice.

H-1B workers who are employed by or have an offer of employment from certain types of employers are “exempt” from the H-1B Cap. If your employer is an

1. Institution of higher education
2. A Nonprofit entity related to or affiliated with an institution of higher education or
3. A Nonprofit or government research organization

Your employer can file an H-1B any time of the year and are not subject to the H-1B Cap or Lottery.

Additionally, if your employer is technically not cap exempt, but you will be working at a cap exempt entity, then your employer may be able to file a cap exempt H-1B petition on your behalf.