The H-1B visa enables foreign nationals to work temporarily in the U.S. in specialty occupations requiring specialized knowledge and a bachelor's degree. It's essential for highly skilled workers in fields like technology, engineering, and medicine.

In this blog, we'll explore the H-1B visa, its requirements, the application process, and how you can maximize your chances of success.

What is the H-1B Visa?

The H-1B visa is a non-immigrant visa that enables U.S. employers to hire foreign workers in specialty occupations.

Key Points about the H-1B Visa:

• Specialty Occupation: The job must require a theoretical and practical application of specialized knowledge and typically requires at least a bachelor's degree.
• Employer Sponsorship: A U.S. employer must sponsor the foreign worker and file the essential petitions with the U.S. Citizenship and Immigration Services (USCIS).
• Annual Cap: There's an annual limit on new H-1B visas, with a lottery system if the number of petitions exceeds the cap.
• Lottery System: If demand exceeds supply, USCIS uses a lottery system to select the petitions that will be processed randomly.
• Dual Intent: The H-1B visa is considered a dual-intent visa, which means holders can apply for permanent residency (a green card) while maintaining their H-1B status.

H-1B Visa Requirements

For the Employer:

• Specialty Occupation: The job must require complex knowledge and skills, often necessitating at least a bachelor's degree in a relevant field.
• Labor Condition Application (LCA): Before filing an H-1B petition, the employer should submit an LCA to the U.S. Department of Labor (DOL).
• Sponsorship and Petition Filing: The employer must file Form I-129 (Petition for Nonimmigrant Worker) with USCIS and, in cap-subject cases, submit an electronic registration during the H-1B registration period (usually in March).

For the Employee:

• Educational Qualifications: The employee must possess a bachelor's degree or its equivalent in the field related to the job. If the degree was obtained outside the U.S., it may need to be evaluated for equivalency.
• Job Offer: The employee must have a legitimate job offer from a U.S. employer for a position that qualifies as a specialty occupation.
• Work Experience: Depending on the role, the applicant may need to demonstrate relevant work experience.
• Licensing: If the occupation requires a specific license to practice in the state of employment, the employee must possess that license before the petition is filed.

H-1B Visa Cap

The H-1B visa has an annual cap of 85,000 visas, with 20,000 reserved for individuals holding a master's degree or higher from a U.S. institution. Due to high demand, many applicants may not be selected, as the lottery system randomly chooses petitions for processing when demand exceeds the cap.

H-1B Visa for Fashion Models

The H-1B visa is also available to fashion models of distinguished merit and ability. This provision allows fashion models who meet the required qualifications to apply for an H-1B visa in recognition of their talent and expertise in the fashion industry.

Duration and Extensions of H-1B Status

The H-1B status is originally granted for three years and can be expanded in one-year increments, typically up to six years. Extensions beyond six years are possible for individuals with a pending green card application, particularly those who have filed an I-140 Immigrant Petition and are awaiting a visa number.

Transitioning Between Employers with H-1B Portability

A key feature of the H-1B visa is its portability provisions under the American Competitiveness in the Twenty-First Century Act (AC21). These provisions allow H-1B holders to switch employers without losing status, as long as the new employer files a valid petition with USCIS before employment begins.

Dependents of H-1B Visa Holders

The H-4 visa allows the spouse and children (under 21) of an H-1B visa holder to live and study in the U.S. They can work only if the primary H-1B holder has an approved I-140 petition. Recently, certain H-4 spouses with approved I-140 petitions have become eligible for Employment Authorization Documents (EADs), enabling them to work while adjusting their status to permanent residents.

H-1B Visa Application Process

Step 1: Employer Registration (for Cap-Subject Petitions)

During the annual registration period, employers must submit an electronic registration for every prospective H-1B worker. If the number of registrations exceeds the cap, USCIS does a lottery to choose the petitions that will be processed.

Step 2: Labor Condition Application (LCA)

The employer should file an LCA with the U.S. Department of Labor, which certifies the wage and working conditions for the H-1B employee.

Step 3: Petition Filing

If the employer's registration is selected, they should file Form I-129, Petition for a Nonimmigrant Worker, along with all supporting documentation, including the certified LCA and proof of the employee's qualifications.

Step 4: USCIS Processing

USCIS will review the petition, and in some cases, may request additional information (known as a Request for Evidence, or RFE). Once the petition is approved, the employee can either change status within the U.S. (if already present) or apply for a visa stamp at a U.S. consulate abroad.

Step 5: Visa Stamping and Entry

For those outside the U.S., once the H-1B petition is approved, the employee must attend a visa interview at a U.S. consulate and receive the visa stamp. They can then enter the U.S. to begin their employment.

Step 6: Employment Begins

After the visa is stamped and the employee enters the U.S., they can begin working for the sponsoring employer.

H-1B Visa for Graduates and DACA Recipients

In response to the evolving job market, the U.S. government has made several updates. Key changes include:

• Faster Processing: Measures have been implemented to speed up employment visa applications for U.S. college graduates and DACA recipients, particularly those with job offers in highly skilled fields.
• Expanded Eligibility: Although the basic H-1B requirements remain the same, the government has shifted focus to prioritize applications from U.S. graduates, including those with DACA status. A comprehensive understanding of the DACA program is essential for applicants seeking to leverage this status when applying for the H-1B visa.

H-1B Visa & Status Law Firm in California

The H-1B visa is valuable for foreign workers and U.S. employers needing specialized talent, but the process can be complex. To navigate it successfully, employers and employees should consult an experienced immigration attorney in California.

Bulldog Law can guide you through the H-1B process, ensuring a smooth application. Whether you're hiring talent or seeking work in the U.S., Bulldog Law is here to assist. The importance of immigration lawyers in deportation defense is also crucial, and our skilled attorneys are ready to help.