What is a H-1B visa?
The H-1B visa is a US work visa open to specialty workers. This visa is a non-immigrant permit, which means it grants people entry to the USA on a temporary basis. H-1B Visa holders can live and work in the United States for 3 years, after which they can extend their stay for another 3 years if they wish to remain in the US.
The H-1B visa allows US companies that operate in specialist fields such as engineering, IT, science and finance to hire overseas workers.
The H-1B visa can be difficult to obtain as this permit is subject to a visa cap by USCIS every year. Currently, 85,000 H-1B visas are granted every year, 20,000 of these can only be granted to advanced degree holders.
What is the eligibility criteria for H1B Visa?
The H-1B visa is designed specifically for skilled workers who are able to work in specialty occupations in the US. There are a number of criteria that must be met to be eligible for the H1-B visa, the requirements are as follows:
- The job role that you will be undertaking in the US must be a specialty occupation, this means that it can only be performed by a specialty worker and the employer must normally require someone with a degree or its equivalent for the role
- You must be classed as a specialty worker, this means that you must hold a bachelor’s degree, it’s equivalent or a higher level qualification
- If necessary, you must have a licence that authorizes you to practice your occupation
The specialty occupations that could qualify for a H-1B visa include:
- IT / Computer professionals
- University professors and teachers and teachers in elementary or secondary schools, colleges
- Engineers and architects
- Healthcare workers, surgeons and dentists
- Accountants and financial analysts
- Management consultants
- Lawyers and foreign Law advisors
- Scientists, physicians and psychologists
- Systems analysts and market research analysts
- Journalists, editors and technical publications writers
You can still be eligible for a H-1B visa if you hold a foreign educational qualification, but this must be the equivalent of a US bachelors degree. You also be eligible if you have education, training, or experience in the specialty that can be deemed as equivalent to a degree, usually this requires at least 12 years of relevant experience.
The H-1B visa application process
The H-1B visa application process must be started by your US employer and has 4 key steps:
- The prospective petitioner must first electronically register and pay the registration fee. The H-1B permit is subject to a visa cap, each fiscal year registration will open for 14 days. When registering, H-1B petitioners will need to provide basic information about themselves and the employees they plan to sponsor. Once the registration period closes a lottery style selection process is used to select from the registrations, selected applicants can then file H-1B cap-subject petitions.
- The US employer must file a Labor Condition Application (Form 9035E/ 9035) with the Department of Labor. The employer will need to show that they meet the H1-B visa requirements, that the role they are hiring for cannot be filled by American citizens and that the wages paid for the role will be equal to the wages paid for similar roles in the company.
- Once the Labour Condition Report has been approved, the employer can move to the next step of the application process by filing a H-1B petition, known as Form I-129, petition for a Nonimmigrant Worker with the US Citizenship and Immigration Services (USCIS). When filing this petition the employer will have to provide details of the company as well as the overseas employer they will be sponsoring. They will also need to submit supporting documents and pay the basic filing fee.
- Once the petition is approved, the worker named on the petition can apply for the actual H1-B visa themselves at a U.S. embassy or consulate in their home country.
How much does it cost to apply for a H-1B visa?
The U.S employer who is sponsoring an overseas citizen is responsible for all of the mandatory visa fees related to a H-1B visa application. The cost of applying for a H1-B visa vary depending on the type of visa fees the employer may need to pay, the fees are as follows:
- Registration fee – $10
- Basic filing fee for H-1B petitions- $460
- AICWA Fee (American Competitiveness and Workforce Improvement Act of 1998) – $750 for employers with 1-25 full time employees, $1500 for employers with 26 or more full time employees
- Fraud prevention and detection fee – $500 fee applicable to a new H-1B and Change of employers petitions
The employee or employer may also pay a premium processing fee if they wish reduce the processing time and receive faster adjudication within 15 days. The premium processing fee is $2,500.
How long is an H1B visa good for?
Typically, the H-1B visa is issued for an initial duration of 3 years, but this can be extended up to a maximum of 6 years.
To apply for an extension of a H1-B visa, the US employer must file a new Form I-129 and pay additional H1-B filing fees. They will also need to make a new Labor Condition Application and can only file Form I-129 once this has been approved. The extension application can be made up to 6 months before the visas validity runs out.
It’s worth noting that for H-1B visas from Chile and Singapore, the H1-B visa is only valid for a 12 month period, which can be renewed each year.
Does H1B lead to green card?
The H-1B visa is a dual-intent visa, this means that H-1B visa holders can be eligible for permanent residency in the US by applying for a employer-based green card.
The maximum duration of stay for a H-1B visa holder is 6 years, after this they must either return to their home country or can apply to adjust their status as a permanent resident and transition to a green card. H-1B visa holders do not need to wait 6 years before applying for a green card, the application can be made at any point after their entry into the US.
The transition from a H-1B visa to an employer-based green card it initiated by the US employer, the company that sponsored the H-1B visa application generally also sponsors the green card application. The application process is as follows:
- The employer must first file a PERM Labor Certification application, this is necessary for anyone who falls into the EB-2 and EB-3 categories.
- After this the company usually has to prove that hiring a noncitizen doesn’t hurt the wages or working conditions of Americans who perform similar jobs.
- The employer must then file an ETA Form 9089 with the DOL.
- Once this has been approved they can file Form I-140, Immigrant Petition for Alien Worker, with the USCIS.
- Finally, the foreign worker can then file Form I-485: Adjustment of status, this form can be filed in conjunction with Form I-140.
How can IAS help?
The H-1B application process is notoriously complex due to the strict requirements and the competitiveness of this permit due to the visa cap. Luckily, our US immigration lawyers are experienced in assisting with H-1B applications and can guide you and your US employer through the process.
Our lawyers can assess your eligibility for the H-1B visa, assist you and your employer with all of the H-1B filing forms, answer any questions you may have about the application process or the visa fees and will be there to guide you each step of the way.
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