H-1B Visa

The Basics

The H-1B visa is for professionals with at least a bachelor's degree or equivalent experience, and permits a stay of up to 6 years for the professional worker and dependent family members, issued in increments of three years.

H-1B Visa Requirements:
1. The H-1B job is in a specialty occupation that requires at least a bachelor's degree.
2. The H-1B worker holds a bachelor's degree or higher, or the equivalent experience, in the appropriate field.
3. The employer must agree to pay the prevailing wage for the H-1B position.

H-1B Visa Processing:
Step 1: Labor Condition Application
A labor condition application ("LCA") must be filed with the U.S. Department of Labor. In the LCA, the employer certifies that the worker will receive the prevailing wage or higher, that there is no strike or lockout at the place of employment, that working conditions will not adversely affect U.S. workers, and that notice has been provided to the union or workers at the place of employment (if applicable). The LCA is filed electronically and is usually certified by the U.S. Department of Labor within minutes.

Step 2: Filing the Petition
A Petition for a Nonimmigrant Worker is filed with U.S. Citizenship and Immigration Services. The H-1B petition normally takes two to four months to be processed. Premium processing is available to guarantee a decision in two weeks (unless there is a request for additional evidence). Premium processing costs and additional $1,000.

Step 3: Applying for the Visa

...If already in the United States:

If the H-1B workers is already in the United States in valid nonimmigrant status, then this worker will generally be able to change status in the United States through the H-1B petition. In most cases, the person will not need to return home for a visa. The first time a trip is scheduled outside the United States, however, it will be necessary for the worker to visit a U.S. consulate first for visa issuance prior to re-entering the United States.

...If outside the United States:

A candidate outside the United States must apply for an H-1B visa at a U.S. Consulate. Consular processing for the H-1B visa normally takes a few days to a few weeks, depending on the schedule of the Consulate. Upon entry to the United States, the H-1B worker will be given a stay that corresponds to the end date on the visa petition approval notice, for a maximum of three years. The H-1B worker may come to the United States 10 days before the authorized work period and stay 10 days later.

In addition to attorney fees and the base USCIS filing fee of $320, Employers must pay a one-time Fraud Detection and Prevention fee of $500, and two time H-1B Education and Training Fee of $1,500. Certain educational institutions and nonprofit or government research organizations are exempt from the Education and Training Fee, and employers with less than 26 full-time employees pay one-half of the Education and Training Fee, or $750. Once again, premium processing, ifdesired, will cost an additional $1,000.

The H-1B Visa Cap:
There are only 65,000 H-1B visas available each fiscal year, which are "released" on October 1 of each year (the start of the U.S. government fiscal year). The earliest a visa may be applied for is six months in advance, or on April 1. Once enough visa petitions have been approved to reach the cap, no more applications will be accepted until the following year's visas become available. Please note that the cap has been reached as early as October in 2004 and August in 2005. Anyone hoping to secure an H-1B visa should plan to do so as early as possible to avoid a problem with the cap.

Note: An additional 20,000 H-1B visas have been authorized by Congress for issuance to H-1B applicants holding advanced degrees for U.S. colleges and universities.

Exemptions: Some H-1B applications are not counted against the cap. These include applications by institutions of higher education, affiliated non-profits, or non-profit or governmental research organizations; applications by J-1 holders who have obtained a waiver through the State 30 program; and applications for extensions of stay or new employment where the person has already been counted in the last six years and the person has not been out of the country for a full year.

Credential Evaluaiton:
If the H-1B worker holds a foreign degree, the degree will need to be evaluated to see if it is the equivalent of a U.S. Bachelor's degree. If the H-1B applicant is relying on experience to make up for some or all of the degree requirement, this experience will also need to be evaluated. Normally, three years of progressively more responsible work experience counts towards one year of university education.

The American Competitiveness in the 21st Century Act ("AC-21") facilitated the transfer of H-1B workers from one employer to another. In order to take advantage of H-1B "portability," you must meet the following requirements:

1) You must have been lawfully admitted to the United States,
2) The new H-1B employer must file a petition with USCIS on your behalf, before your period of stay expires;
3) after your lawful admission to the United States, you must not have been employed without authorization.

If you meet all three of these criteria, you may start working for the new employer as soon as your new H-1B petition is filed with USCIS.