The H-1B Visa is a nonimmigrant work visa that allows US companies to hire highly skilled immigrants for jobs where there is a shortage of American workers. The H1-B Visas are typically issued for a 3-year period and can be renewed for another three years.
The foreign workers who can qualify for an H-1B Visa include those individuals that come to the United States to work in specialty occupations that require a bachelor’s degree or higher, individuals who engage in cooperative research and development projects administered by the U.S. Department of Defense and fashion models of distinguished merit and ability.
The H-1B specialty occupations can include fields such as science, engineering and information technology, and fields such as teaching and accounting.
“Our H-1B visa lawyers use expertise to advise you on all aspects of business immigration to the United States”
- What is H-1B Visa?
- Who is Eligible for H-1B Visa?
- What are the H-1B Visa Requirements?
- H-1B Visa Process
- Steps to Apply for H-1B Visa
- H-1B Visa Cap
- H-1B Visa Registration
- Check H-1B Visa Lottery 2023
- H-1B Application deadline 2023
- How long does an H-1B Visa take to process?
- How long can I stay and work in the US on H-1B Visa?
- How to renew or extend an H-1B Visa?
- Can I bring my family with H-1B Visa?
- H-1B Visa cost
- Is H-1B Visa a green card?
- Can I travel on an H-1B Visa?
- Can I buy a house on H-1B Visa?
- H-1B transfers and change of employers
- H-1B Visa for investors or entrepreneurs
- How can an H-1B visa lawyer assist?
1. What is H-1B Visa?
The H-1B is a work visa that allows US employers to hire foreign workers for positions that require at minimum a bachelor’s degree or equivalent. H-1B visas are used to fill white-collar jobs in fields such as IT, finance, engineering, and marketing.
2. Who is eligible for H-1B Visa?
The H-1B work visa is available to workers in specialty occupations, foreign workers assigned to projects managed by Department of Defense as well as those working in the fashion industry.
To be eligible for H-1B Visa foreign workers must have at least a bachelor’s degree or its foreign equivalent. The only exception is for fashion models, who must be of distinguished merit and ability. The H-1B Visa for Specialty Occupations is by far most widely used type of the visa. H-1Bs for DOD project workers and fashion models, also known as H-1B2 and H-1B3 respectively, are less commonly used.
The individuals who are eligible for H-1B Visa include:
- Individuals working in specialty occupations: These positions normally require a bachelor’s degree, or higher, in a specialty field such as engineering, programming, finance, etc. Here it is important to understand that the employer stating they require a degree is not enough. US immigration officers look at the job duties and if a bachelor’s degree or higher is normally required to perform such duties.
- Workers for Department of Defense (DOD) research and development project: This is a little less known use of H-1B visas, but foreign workers can come to work in the U.S. for a defense research and development project. The project must be conducted under a government-to-government agreement and be overseen by the U.S. Department of Defense.
- Fashion models: H-1B visas can be used by individuals who come to the US to work as fashion models. The foreign fashion models must be of distinguished merit and ability.
3. What are the H-1B Visa Requirements?
The H-1B Visa requirements for specialty occupations are:
- The worker must have a US employer that will file the H-1B petition with USCIS and will employ the worker once in the U.S.
- The worker must possess a bachelor’s or a higher degree such as master’s or the equivalent of bachelor’s or a higher degree. The degree must be from an accredited education institution in the U.S. or abroad. U.S. Citizenship and Immigration Services (USCIS), the agency tasked with processing H-1B visa petitions, defines the equivalent of a bachelor’s or a higher degree, as having education, specialized training, and/or progressively responsible experience that is equivalent to a U.S. bachelor’s or higher degree.
- If a license is required for the position, the worker must hold an unrestricted state license, registration, or certification that authorizes him or her to practice the specialty occupation.
The H-1B visa requirements for the position to be filled are:
- A bachelor’s degree or higher is normally the minimum requirement for the position
- The degree requirement is common for similar positions in the industry and for similar companies or the job duties are so complex and unique that can only be performed by an individual with a degree
- The sponsoring employer normally requires a degree or its equivalent for the position
The H-1B visa requirements for employees on Department of Research and development projects are the same as for specialty occupation workers when it comes to degree requirements. The main difference is that USCIS will require a verification letter from the Department of Defense project manager, along with a list of the names of any foreign workers involved in the project, now or during the past year.
Individuals seeking to enter under H-1B visa as fashion models, must be entering the U.S. to perform services that require a fashion model of prominence, and be a fashion model of distinguished merit and ability.
4. H-1B Visa Process
The US employer is doing most of the work required to bring a foreign worker on an H-1B visa. There are 85,000 H-1B visas available each fiscal year. A fiscal year in runs from October 1 to September 30. Since there are a lot more candidates for H-1B visas than there are available visas, it is important to start the process on time.
Employers need to take the following steps to sponsor an H-1B visa for foreign workers:
A. H-1B Electronic Registration
B. Have an approved Labor Condition Application (LCA)
C. File H-1B Visa Petition with USCIS
D. Attend an H-1B visa interview or change status in the United States
Below we discuss in detail the H-1B visa process:
A. H-1B Electronic Registration
In 2020 USCIS implemented an electronic registration process for H-1B visa petitions that are subject to numerical limitation.
This means that a US employer must first register with USCIS, pay $10 fee for each prospective worker and provide basic information about themselves and the workers.
After the registration period ends, prospective H-1B visa workers are selected through random lottery process. There is no way to predict what H-1B visa registration is selected or when each year’s H-1B visa cap will be used.
The selected workers are then notified and their employers can proceed with filling the petition. The workers who are not selected are not allowed to continue and can choose to wait for next year’s lottery.
The registration process starts on March 1, 2023 and ends on March 18, 2023, and applicants are notified by March 31 if they were selected or not.
B. Have an approved Labor Condition Application (LCA)
A US employer must obtain an approved LCA from the Department of Labor (DOL). Employers are not required to obtain a prevailing wage determination from DOL but are encouraged to do so when feasible.
The LCA includes attestations which if the employer violates will result in fines, possible bans on sponsoring foreign workers for US visas, as well as other sanctions. The attestations need to meet the following labor requirements:
- The employer will pay the foreign worker at least the prevailing wage for the position in its geographic area
- The employer will provide working conditions that will not adversely affect other similarly employed workers
- There is no strike or lockout when the LCA is filed
- Notice of the LCA has been given to the union bargaining representative, if any, or has been posted at the place of employment.
The LCA cannot be submitted more than 6 month before the beginning date of the period of employment. The earliest date to file an LCA in connection with H-1B visa is April 1.
LCAs are reviewed by the Department within 7 working days for completeness and obvious errors or inaccuracies.
C. File H-1B Visa Petition with USCIS
Provided the foreign applicant was selected in the lottery, and after obtaining the certified LCA from USCIS, the employer can file an H-1B visa petition with USCIS for nonimmigrant worker.
The H-1B visa petition should be accompanied by supporting documents and evidence that show that the foreign employee, the employer and the position all meet the H-1B visa requirements.
Only a US licensed immigration attorney is competent enough to advise the employer as to contents of the petition and supporting evidence.
The worker’s earliest start date on an H-1B visa is October 1 of each year.
USCIS can adjudicate the H-1B visa petition within 15 calendar days with premium processing.
D. Attend an H-1B visa interview or change status in the United States
If USCIS approves the H-1B visa petition, then the prospective H-1B workers who are outside the US can apply for the H-1B visa at the nearest US consulate or embassy.
To apply for an H-1B visa at a U.S. Consulate abroad, the foreign applicant must submit form DS-160, pay the H-1B visa interview fee, attend an H-1B visa interview and bring supporting documents, including a copy of the approval notice for the H-1B visa interview.
If the H-1B worker is in the United States at the time the H-1B visa petition is filed, then the employer can request a change of status on the petition. This means the worker is given a new immigration status and will be issued a new I-94 that shows that new H-1B status. However, in this case, if the workers wants to travel outside the US, he or she must go to a U.S. consulate or embassy and obtain an H-1B visa stamp in their passport to be able to return to the United States.
5. Steps to Apply for H-1B Visa
The steps to apply for H-1B Visa are:
A. If you are an Employer, you must select employees, prepare position description, determine salaries; if you are an Employee you must secure an offer from a U.S. Employer
B. Create an USCIS account (Employer or their attorney)
C. H1-B registration (Employer or their attorney)
D. File LCA with U.S. Department of Labor
E. File nonimmigrant worker petition with USCIS (Employer or their attorney)
F. Receive copy of approved petition with I-94 if applying from within the US
G. Submit DS-160 and pay visa interview fee (Employee, if applying from outside the US)
H. Go to visa interview fee (Employee, if applying from outside the U.S.)
6. H-1B Visa Cap
H-1B Visa Cap is set at 85,000 new visas for each fiscal year.
There are 65,000 H-1B Visas available each year for foreign workers with a bachelor’s degree and 20,000 H-1B Visas for foreign workers that hold a master’s degree or higher from a U.S. university or other higher education institution.
In practice, if the applicant holds a master’s from a U.S. university he or she can be randomly selected for any of the 85,000 available H-1B visas while a candidate with only a bachelor’s degree can only be selected for one of the 65,000 remaining spots.
Additionally, H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities, a nonprofit research organization, or a government research organization, are not subject to this numerical cap.
Please note that 6,800 H-1B visas are set aside from the 65,000 each fiscal year for the H-1B program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore free trade agreements.
7. H-1B Visa Registration
In 2020 USCIS implemented the H-1B Visa Registration which is an electronic registration process for the H-1B cap.
For H-1B Visa Registration prospective H-1B employers must register electronically and pay the associated $10 non-refundable H-1B registration fee for each prospective H-1B employee. The H-1B visa registration fee can be paid by credit or debit card.
The registration process requires only basic information about the employer and the prospective employee. The registration period is open for a minimum of 14 calendar days each fiscal year. Employers will be able to file H-1B petitions only for prospective employees whose registrations were selected in the lottery.
To avoid candidates unfairly increasing their chances of being selected, the USCIS requires that employers attest, under penalty of perjury, that all of the information contained in the submission is complete, true, and correct.
Petitioning employers or their attorneys can start creating the H1-B Visa Registration accounts with USCIS on February 22 at noon Eastern time. The registration period starts on March 1 of each year and has to be completed by March 18. By March 31, employers or their attorneys will receive notifications which of their candidates have been selected in the lottery, if any.
8. Check H-1B Visa Lottery 2023
During FY 2022, USCIS received 308,613 H-1B registrations. Initially, USCIS selected 87,500 H1-B candidates through the lottery. The 87,500 entries selected was based on USCIS projections about what it needs to reach the 85,000 H-1B visa cap.
Later in the year, USCIS conducted a second lottery, selecting an additional 27,717 H-1B applicants. The second lottery was needed because not all H-1B visas were taken as H-1B petitions were submitted only for a portion of the selected applicants.
In order to reach the numerical H-1B cap for FY 2022, USCIS conducted a third lottery to select another 16,753 H-1B applicants. The final result was that approximately 132,000 H-1B applicants were selected out of 308,000 registered candidates. That makes the chance of being selected over 40%.
For FY 2023, USCIS received 483,927 H-1B registrations and initially selected 127,600 registrations projected as needed to reach the FY 2023 H-1B cap.
9. H-1B Application Deadline 2023
The H-1B Application Deadline 2023 is March 18, 2023 unless the employer is exempt form the H-1B cap such as an university. All other employers seeking H-1B workers must start the process early this year between March 1. 2023 and March 18, 2023.
To employ H-1B workers for fiscal year 2024 with start dates between October 1, 2023 and September 30, 2024, the employer must start the H-1B visa process between March 1, 2023 and March 18, 2023 with the electronic registration. By then the employer must know who they want to hire, what are their degrees and credentials, and on what positions.
If the prospective workers are selected in the lottery the U.S. employer can file the LCA and petition for nonimmigrant workers after April 1 of each year. The employer can file anytime after April 1, as there is no set deadline, but once USCIS reaches the 85,000 H-1B visa cap it stops adjudicating new petitions. In practice that means the employer should file the H-1B petition as soon as possible after April 1.
10. How long does an H-1B Visa take to process?
The average USCIS processing time for H1-B visa petitions is between 2-6 months or 15 calendar days with premium processing. For a fast processing, the U.S. employer can pay an additional fee of $2,500 to USCIS to have the petition processed within 15 calendar days.
If the H-1B worker is not in the U.S., he or she must apply for H-1B visa at the nearest U.S. consulate or embassy. This might add extra few weeks to schedule and attend the interview, depending on the availability at the particular consulate.
11. How long can I stay and work in the US on H-1B Visa?
On an H-1B visa you can stay and work in the US for an initial period of 3 years. You can renew the H-1B visa once for an additional period of 3 more years. You can stay and work in the US on H-1B visa for maximum 6 years or more if you can recapture days spent outside of the United States.
After that, you must either leave the U.S. or apply to change your immigration status under a different immigrant or nonimmigrant classification.
12. How to renew or extend an H-1B visa?
The process to renew or extend the H-1B is the same as getting a new H-1B visa but the only difference is that the petition is not subject to the numerical H-1B cap of 65,000 regular H-1Bs and 20,000 H-1Bs for advanced degree.
If the H-1B worker changes the position, USCIS will again look if the job duties necessitate a minimum of bachelor’s degree. A new LCA also needs to be submitted.
13. Can I bring my family with H-1B visa?
Yes, immediate family members of H-1B employees (spouses and unmarried children under 21) can come to live in the U.S. with H4 visa.
Spouses and children of H-1B visa holder generally do not have the right to work in the United States. However, there is on exception for spouses.
Spouses of H-1B visa holders can apply for employment authorization on form I-765 if the H-1B visa holder has already started the process of seeking employment-based permanent resident (green card) status as follows:
- H-1B visa holder is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
- H-1B visa holders has been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act (AC21).
- Based on Filing of a Permanent Labor Certification Application for H-1B visa holder that was filed at least 365 days before the period of admission authorized under AC21 106(a) and (b) begins.
- Based on a Pending Form I-140 for H-1B visa holder that was filed at least 365 days before the period of admission authorized under AC21 106(a) and (b) begins.
14. H-1B Visa cost
The costs of an H-1B visa are:
- Registration Fee – $10 per employee; must be paid by the employer
- Petition USCIS Filling Fee – $460 per employee; must be paid by the employer
- Premium Processing Fee – $2,500 per employee. The fee is optional, paid to process the petition within 15 days. Can be paid by either employer or employee
- USCIS Anti-Fraud Fee – $500 per employee; must be paid by the employer
- ACWIA Education and Training Fee – $750 if the employer has 25 or less employees and $1,500 for those with more than 25 employees; must be paid by the employer
- Public Law 114-113 – $4,000 for employers with 50 or more employees, with more than 50% of the employee being on H-1B or L-1 visas; must be paid by the employer
- Visa Interview Fee – $190 per employee; can be paid by the employee
15. Is H-1B Visa a green card?
The H-1B visa is not a green card also known as a permanent residency permit for the U.S. However, an H-1B visa holder can transition to permanent residence via green card through employment programs EB-3 or EB-2. In fact H-1B visa is a dual intent visa and it is not uncommon for employers to start the green card process of their H-1B employees soon after they arrive in the U.S.
16. Can I travel on an H-1B Visa?
Yes, employees who have obtained H-1B visa stamp in their passport can travel freely outside the United States, for leisure, business or to visit family.
It is not uncommon for workers who graduate from a U.S. university or college, and transition from OPT to H-1B, to not leave the USA before getting an H-1B status. Here, it is important to note that receiving an I-94 as part of H-1B approval notice only grants status, and the I-94 status is not visa. In that case the H-1B employee must plan to interview for H-1B visa at a U.S. consulate abroad when she or he travels outside the US.
17. Can I buy a house on H-1B Visa?
Yes, you can buy a house on an H-1B visa. There are no legal barriers for an H-1B employee to acquire real estate in the USA.
However, an H-1B employee might find it difficult to obtain a mortgage, especially at the beginning of their stay in the US. That is why it is important for H-1B employees who want to purchase a home to start building credit history soon after their arrival in the United States.
18. H-1B transfers and change of employers
If an H-1B employee ceases employment with the current employer, he or she has up to 60 calendar days grace period to find a new employer and transfer the H-1B. Otherwise the employee will either have to change to another immigrant or nonimmigrant status, or depart the United States. You can visit our alternatives to H-1B visa page to learn mora about other visa options available.
H-1B employees can change employers and transfer their H-1B status to a new employer if he or she has not worked without authorization since their last entry in the U.S.
To effectuate the transfer, the new employer must follow the same process as an initial H-1B application. The main difference is that the transfer is not subject to the H-1B cap and can be filed at any time during the fiscal year, unless the transfer from a cap exempt to cap subject position.
The H-1B employee cannot start working for the new employer before receiving Form I-797C Notice which acknowledges receipt of the nonimmigrant petition on behalf of the USCIS. The H-1B employee can start working for the new employer while the H-1B petition is pending.
If the petition is approved the H-1B employee can continue working for the new employer. If the petition is denied, the H-1B employee must stop working and leave the United States.
Transferring an H-1B does not affect the maximum period of authorized stay which is limited to 6 years.
19. H-1B Visa for investors or entrepreneurs
In the case of an Investor, Business Owner or Entrepreneurs applying for an H-1B Visa, the US company and the foreign worker are often the same person, but a business owner can also use an H-1B Visa to sponsor his or her employees.
An H-1B Visa is more difficult as an option when the owner of the US company is also the beneficiary of the H-1B visa petition because there are strict laws regarding whether or not a person who has an ownership interest in a company can sponsor themselves for an H-1B Visa. However, a qualified immigration specialist can help in this case.
20. How can an H-1B visa lawyer assist?
An H-1B visa lawyer can assist your business in presenting the best care possible to the USCIS. A qualified H-1B visa lawyer can improve the chances of H-1B approval by managing the process from start to finish, collecting, preparing nonimmigrant petitions, organizing and presenting supporting documents, creating overall case strategy and communicating with USCIS, Department of Labor and U.S. consulates abroad.
If you are an employer, seeking to sponsor an H-1B in a specialty occupation, for DOD research and development project employee or for a fashion model, contact our H-1B visa lawyers in Miami, Florida USA to schedule an appointment to discuss your H-1B visa and other visa options available for you.
Malescu Law P.A. – Business & Immigration Lawyers