The H-1B Visa Requirements
REQUIREMENTS OF THE H-1B VISA IN THE UNITED STATES:
The H-1B is a non-immigrant visa in the United States which allows U.S. employers to temporarily employ foreign workers in specialty occupations for professional-level jobs.
Below are some key requirements you must fulfill to apply for an H-1B Visa. For each requirement, you must include some forms of evidence in support of your petition.
Requirement 1 – You must have an employer-employee relationship with the petitioning U.S. employer.
A valid employer-employee relationship is determined by whether the U.S. employer may hire, pay, fire, supervise or otherwise control the work of the H-1B worker. Usually the company owner or petitioning organization can establish a valid employer-employee relationship, if the facts show that the petitioning entity has the right to control the beneficiary’s employment.
Requirement 2 – Your job must qualify as a specialty occupation by meeting one of the following criteria:
A bachelor’s degree or higher degree or its equivalent is normally the minimum requirement for the particular position;
The degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor’s degree in a field related to the position;
The employer normally requires a degree or its equivalent for the position; or
The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
Requirement 3 – Your job must be in a specialty occupation related to your field of study.
The regulations define a “specialty occupation” as requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor including but not limited to biotechnology, chemistry, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, law, accounting, business specialties, theology, and the arts, and requiring the attainment of a bachelor’s degree or its equivalent as a minimum (with the exception of fashion models, who must be “of distinguished merit and ability”).
Requirement 4 – You must be paid at least the actual or prevailing wage for your occupation, whichever is higher.
The prevailing wage is determined based on the position in which you will be employed and the geographic location where you will be working (among other factors). The U.S. Department of Labor (DOL) maintains a database with applicable current prevailing wage levels based on occupation and work location.
Requirement 5 – An H-1B visa number must be available at the time of filing the petition, unless the petition is exempt from numerical limits.
The H-1B visa has an annual numerical limit, or cap, of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap. 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. Cap numbers are often used up very quickly, so it is important to plan in advance if you will be filing for an H-1B visa that is subject to the annual H-1B numerical cap. The U.S. government’s fiscal year starts on Oct. 1. H-1B petitions can be filed up to 6 months before the start date, which is generally April 1 for an October 1 start date.
Congressional yearly numerical cap and exemptions.
To determine whether H-1B Petition is subject to the regular congressionally mandated cap of 65,000 the United States Citizenship and Immigration Services (USCIS) uses the information provided in Sections 2 and 3 (or Part C) of the H-1B Data Collection and Filing Fee Exemption Supplement. USCIS has already reached the congressionally mandated H-1B cap for fiscal year (FY) 2016. They also have received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced degree exemption. USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted toward the congressionally mandated FY 2016 H-1B cap.
Free Trade Agreements carve out 1,400 H-1B1 visas for Chilean nationals and 5,400 H-1B1 visas for Singapore nationals. However, if these reserved visas are not used, then they are made available in the next fiscal year to applicants from other countries.
USCIS starts accepting applications on the first business day of April for visas that count against the fiscal year starting in October. USCIS will begin accepting H-1B petitions that are subject to the FY 2017 cap on April 1, 2016. You may file an H-1B petition no more than six months before the employment start date requested for the beneficiary.
Duration of stay.
The duration of stay on an H-1B visa is three years, extendable to six years. An exception to maximum length of stay applies in certain circumstances
If a visa holder has submitted an I-140 immigrant petition or a labor certification prior to their fifth year anniversary of having the H-1B visa, he is entitled to renew their H-1B visa in one-year or three-year increments until a decision has been rendered on their application for permanent residence.
If the visa holder has an approved I-140 immigrant petition, but is unable to initiate the final step of the green card process due to their priority date not being current, he may be entitled to a three-year extension of their H-1B visa.
The maximum duration of the H-1B visa is ten years for exceptional United States Department of Defense project related work.
H-1B holders who want to continue to work in the U.S. after six years, but who have not obtained permanent residency status, must remain outside of the U.S. for one year before reapplying for another H-1B visa. Despite a limit on length of stay, no requirement exists that the individual remain for any period in the job the visa was originally issued for. This is known as H-1B portability or transfer, provided the new employer sponsors another H-1B visa, which may or may not be subjected to the quota. Under current law, H-1B visa has no stipulated grace period in the event the employer-employee relationship ceases to exist.
The process of getting an H-1B visa has three stages:
1) The employer files with the United States Department of Labor a Labor Condition Application (LCA) for the employee, making relevant attestations, including attestations about wages (showing that the wage is at least equal to the prevailing wage and wages paid to others in the company in similar positions) and working conditions. Employer must submit evidence of the beneficiary’s education credentials at the time of filing.
2) With an approved LCA, the employer files a Form I-129 (Petition for a Nonimmigrant Worker) requesting H-1B classification for the worker. This must be accompanied by necessary supporting documents and fees.
3) Once the Form I-129 is approved, the worker may begin working with the H-1B classification on or after the indicated start date of the job, if already physically present in the United States in valid status at the time. If the employee is outside the United States, he/she may use the approved Form I-129 and supporting documents to apply for the H-1B visa. With a H-1B visa, the worker may present himself or herself at a United States port of entry seeking admission to the United States, and get an Form I-94 to enter the United States. Employees who started a job on H-1B status without a H-1B visa because they were already in the United States still need to get a H-1B visa if they ever leave and wish to reenter the United States while on H-1B status.
Dependents of H-1B visa.
H-1B visa holders can bring immediate family members (spouse and children under 21) to the U.S. under the H4 Visa category as dependents. An H4 Visa holder may remain in the U.S. as long as the H-1B visa holder retains legal status. An H4 visa holder is not eligible to work or get a Social Security number (SSN). However, a DHS ruling made on Feb 24, 2015 provides certain H4 visa holders with eligibility to work, starting May 26, 2015. An H4 Visa holder may attend school, get a driver’s license, and open a bank account in the U.S. To claim a dependent on a tax return or file a joint tax return, the dependent must obtain an Individual Tax Identification Number (ITIN), which is only used for tax filing purposes.
The experienced attorneys at FILIPPOV LAW GROUP, PLLC can alleviate your process of obtaining an H-1B Visa. Our attorneys offer knowledgeable advice and provide excellent immigration services when dealing with Immigration and Naturalization Service. If you are looking into obtaining an H-1B Visa or have questions regarding obtaining an H-1B Visa, call us at (832) 305-5529 or email our managing member firstname.lastname@example.org.
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