What Is an H-1B Visa?

By The Law Office of Yifei He, PLLC

The U.S. Citizenship and Immigration Services issues 85,000 H-1B visas every year. As the job market fluctuates and innovation requires more input from skilled workers around the world, the H-1B visa is more important than ever. So, what is an H-1B visa, and what does it do?

H-1B Visa Overview

There are many classifications of work visas to choose from, but the H-1B visa is for those in specialty occupations. Immigrants seeking to perform services of exceptional merit and ability can apply for a visa to work in the United States.

Applicants must have:

  • A U.S. bachelor’s degree or higher in a specific specialty
  • A foreign degree that is equivalent to a U.S. bachelor’s degree or higher from an accredited college or university
  • An unrestricted state license, registration, or certification that authorizes you to practice the specialty occupation

H-1B applicants should also be sure that the position they wish to work in meets USCIS requirements. Otherwise, the application may be denied.

The work position must:

  • Require a bachelor’s degree or higher as a minimum entry requirement
  • Verify that the degree requirement is common in the industry or the job is so complex or unique that it can be performed only by an individual with a degree
  • Include duties that are so specialized that they require knowledge associated with a bachelor’s degree or higher

Many immigrants in mathematics, engineering, technology, and medical sciences often receive this visa, but other highly skilled workers are also eligible if they meet the above conditions.

The H-1B visa is a temporary visa category that allows employers to hire highly educated workers from around the world to contribute to their company. Since the category’s creation in 1990, Congress maintains a cap on the number of applications accepted. In recent years, the cap is reached within a few days after the petition period start date.

The Petition Process

The H-1B petition process has a preliminary registration step followed by three basic steps. However, don’t let the number of steps mislead you – the visa petition process is extremely complicated, and it often takes time to collect the necessary documentation and approval.

Preliminary Step: H-1B Registration Process

Beginning in 2020, USCIS changed to a registration process. Each year, USCIS will announce the next registration period, during which a U.S. employer must first register electronically for each foreign national for whom the employer intends to file an H-1B petition. The registration fee is $10 for each Beneficiary. Over the past several years, USCIS has received a greater number of petitions than there are visa numbers available. If selected in the H1B Registration, the Applicant may proceed to the next step.

Step #1: Employer/Agent Submits LCA to the Department of Labor

The employer or agent petitioning the USCIS on your behalf must submit a Labor Condition Application (LCA) for certification. LCAs should include pay, working conditions, and union information (if applicable). Violation of a certified LCA is punishable by hefty fines, bars on sponsoring other immigrant workers, and other sanctions.

Step #2: Employer/Agent Submits Form I-129 to the USCIS

The employer or agent must file Form I-129, Petition for a Nonimmigrant Worker, on behalf of the immigrant. This form should be submitted to the correct USCIS office along with the DOL-certified LCA.

Step #3: Prospective Workers Apply for Visa and/or Admission

Once Form I-129 is approved, the prospective immigrant must apply with the U.S. Department of State for an H-1B visa through the embassy or consulate in their country. They will also need to apply to U.S. Customs and Border Protection for admission to the United States. Otherwise if the prospective immigrant is already in the United States, and in valid status, they may instead obtain an Adjustment of Status through an approved I-129.

This process can take weeks to complete from start to finish, but once you are approved, the visa lasts for three years. You can extend your period of stay, but the visa cannot be extended beyond six years. If the employer terminates you before the period of authorized stay is over, they are responsible for paying the transportation fees.

Guidance Throughout the H-1B Process

Regardless of where you are in the petition process, you must consult an attorney. Applying for a visa of any kind is complicated, but the demand for H-1B status makes applying more challenging than ever. That’s why you should take the necessary steps to ensure that your petition is accurate.

The Law Office of Yifei He, PLLC offers multilingual legal services for a variety of immigration cases. When you need an experienced advocate on your side, contact our firm.