The H-1B is the most common visa among high-skilled foreign workers. In 2017, the United States Citizenship and Immigration Services (USCIS) received 199,000 petitions for H-1B visa, but only up to 85,000 obtained permits to work in the United States. This limitation is known as the H-1B Cap.
The H-1B is one of the most-sought U.S. visas for good reason. Not only does it allow a foreign national to legally work in the U.S. for up to six years (initially, an applicant obtains a three-year permit), but it also enables the foreign national to seek permanent residence. While H-1B is a nonimmigrant visa, unlike most other nonimmigrant visas, a foreign national does not need to prove the intent to return home. Specifically, applicants for the H-1B visa can have “dual intent” and, consequently, receive a Green Card during their time of their stay in the U.S.
In this guide, I am going to explain to both Applicants (“Beneficiary”) and their Employers (“Petitioner”) what to do to apply for, receive, extend, transfer and recoup the H-1B nonimmigrant visa. I will cover benefits of this visa and help you avoid major pitfalls to increase your chance of success.
Note: All the facts, figures and statements mentioned in this guide are valid as of July, 2017.
What is an H-1B Visa?
The H-1B is a non-immigrant visa that allows (a) highly-skilled foreigners to temporarily work in the United States; and (b) U.S. companies to hire foreign workers whose knowledge and expertise in specialty occupations is necessary to the success of their companies.
The H-1B visa is regulated under the Immigration and Nationality Act, which originally introduced the H-1 program and allowed for import of needed foreign workers in 1952. The H-1B visa itself was established in 1990 during George H. W. Bush presidency. Since then, it was “reviewed” at least five times — in 1990, 1998, 2000, 2004, and 2009.
In 2017, President Donald Trump signed a "Buy American, Hire American" Executive Order, which suggests there may be an upcoming reform of the H-1B visa. While the visa itself is here to stay, some changes to legal and administrative rules are inevitable. As of today, USCIS has temporarily suspended premium processing for almost all H-1B petitions.
Though the H-1B visa is under scrutiny, it is unlikely that the Trump administration will take drastic steps and abolish it entirely. This is still a viable option for legal immigration to the United States. Let’s consider several benefits and disadvantages of this type of visa.
Major Benefits of H-1B Visa
- The Beneficiary does not need to possess an extraordinary ability to receive the H-1B visa. He or she is required to have a bachelor’s degree (or higher) in specialty occupations (mostly, in the field of Science, Technology, Engineering, Mathematics), or a U.S. degree equivalent, and a job offer from a U.S. employer.
- There is no limit as to how many times a foreign national can apply to receive the H-1B visa. If an applicant possesses the required skills in specialty occupations, he or she can play in the H-1B lottery every year. However, the same Petitioner cannot file multiple petitions for the same Beneficiary in the same year.
- The H-1B visa is originally issued for three years and can be renewed for another three years. In rare cases, the H-1B visa holder can maintain their status for up to ten years by working on Defense Department projects. During the time of stay, the H-1B holder or his/her employer can apply to change the Beneficiary’s nonimmigrant H1-B status to an immigrant visa and then green card through a multi-step process called PERM.
- Foreign citizens with the H-1B status can bring their immediate dependents to live in the United States. Spouses and children under 21 years of age receive the H-4 status and can legally live and study in the country. They are also eligible to get Green Cards. Some spouses of H-1B visa holders can work after obtaining Employment Authorization Documents.
- H-1B visa holders can be employed by any U.S.-based company. The process of visa transfer is not complex. A new employer just needs to file a separate H-1B petition. Holding multiple positions with different employers and working part-time is also allowed.
Disadvantages of the H-1B Visa
- Only a limited number of petitions are approved each year, and applicants have to take part in the H-1B lottery. Even if an applicant has found a U.S. employer willing to sponsor them and filled out the required documents, it is not guaranteed that the applicant will get the visa. The annual cap is 65,000 visas (plus 20,000 visas for applicants holding a Master's degree), and there were 199,000 petitions in 2017. Roughly only 1 in 2.5 petitions makes it through the lottery to be reviewed by USCIS. This is a slight improvement over 2016, when there were 236,000 petitions filed.
- The maximum duration of stay for the majority of workers with H-1B status is six years. The visa can be extended once and cannot be renewed further. If a holder fails to change status, he or she will have to leave the U.S. Some foreign citizens with H-1B status can be exempted from the six-year cap, though.
- As H-1B visa holders are selected through the lottery process, applicants cannot file petitions until April 1st of each year. The acceptance of petitions for the lottery is cut off roughly 4 or 5 days after April 1st. Once selected and approved, the Beneficiary can only begin working in the U.S. after October 1st of that same year.
- The H-1B visa requires a job offer. While in some fields it is not difficult (e.g. STEM, software development, etc.), in other fields (e.g. arts, journalism) it may be a problem. Applicants cannot file their own petitions — they need an employer to do that.
- The H-1B visa incurs a fee. Employers have to pay to hire a highly-skilled foreign citizen. In some cases, the total cost of bringing the H-1B worker to the U.S. can reach up to $7,000 in immigration fees alone.
Note: Only 85,000 H-1B visas are issued per year. 20,000 visas are saved for applicants holding a Master's degree. The rest are reserved for those with a Bachelor’s degree, and for non-degree applicants. A total of 6,800 visas out of 65,000 are reserved for nationals of Singapore and Chile under the U.S. trade agreements with these countries.
Several employers fall into an exemption category, under which the employer is exempt from the H-1B Cap. These exempt employers are usually: Institutions of Higher Education, Non-profit entities related to or affiliated with a Higher Education Institution, or Research Organizations.
Now that you are aware of all ups and downs of the H-1B visa, let’s delve deeper into qualifications. Though the requirements to get that type of visa are fairly broad, it would be a mistake to assume that any foreign citizen could easily qualify.
H-1B Qualifications: Specialty Occupations & Visa Categories
To qualify for the H-1B visa, a foreign national has to:
- Have a job offer from a U.S. employer
- Hold at least a bachelor’s degree or its equivalent in a specialty occupation
A U.S. employer must prove they need to hire a highly-skilled foreign citizen:
- Certify that a position requires a professional in a specialty occupation
- Demonstrate to USCIS that the employer is willing to pay the prevailing wage to a prospective worker
- Provide evidence that a prospective H-1B applicant has the knowledge and expertise required by the specialty occupation.
Note: Due to a Labor Condition Application (LCA) requirement, employers need to demonstrate that a potential H-1B worker will receive the wage that is equal or exceeds the average for this type of the job or specification (i.e. the prevailing wage)
A applicant must have a bachelor’s degree (or higher) issued by either a U.S. college or a foreign university. A foreign degree has to be an equivalent to that of at least a U.S. bachelor’s degree and be issued by a respected, internationally-recognized university. Foreign degrees usually have to be evaluated to demonstrate their U.S. equivalency.
In some cases, an foreign national can prove their qualification through a combination of education, specialized training, and work experience. As a rule, one year in college is considered equal to three years in the targeted position. Generally, a foreign national has to have worked for at least 12 years in the specialty occupation to become eligible if they do not hold a relevant bachelor's degree.
There are specific requirements for different categories of the H-1B visa, too. These are:
H-1B - Specialty Occupations
- A bachelor’s or higher degree (or its equivalent)
- An ability to perform a job that is common to the industry but requires a high level of knowledge and expertise (in most cases, the job has to be performed only by an individual with a degree)
- Sometimes a license/registration/certification that allows performing a given job or job-related activities in the field (ex. State Certified Nutritionist, Registered Nurses, Attorneys)
- The employer needs to file an approved Form ETA-9035 (LCA), with the Form I-129, Petition for a Nonimmigrant Worker
H-1B1 - Nationals of Singapore and Chile
- Basic requirements for H-1B visa applicants (a degree and a job offer)
- Nationals of Singapore or Chile
- Has to be renewed every two years; no six-year cap
- Employer: File an approved Form ETA-9035 (LCA), with the Form I-129, Petition for a Nonimmigrant Worker annotated “H-1B1-Singapore” or “H-1B1-Chile”
H-1B2 - DOD Researchers & Development Project Workers
- Basic requirements for H-1B visa applicants (a degree in specialty occupation)
- A job offer has to be provided and administered under the U.S. Department of Defense
- Can be extended for up to ten years
- There are no employer requirements
H-1B3 - Fashion Models
- Be a model of prominence
- Merit and ability evidenced by participation in nationally and internationally recognized events in the field
- Employer: File an approved LCA with the Form I-129
How to Apply to H-1B Visa
The process below details how to apply for an H-1B visa - specialty occupations; categories are not covered.
- The employer fills out and files a Labor Condition Application to the U.S. Department of Labor, attesting to what the wages and working conditions will be.
- The employer submits a filled-out Form I-129 to USCIS. Check out the detailed guidelines here.
- The prospective worker applies for a visa after the Form I-129 petition has been approved. The application should be done through the U.S. Department of State. The foreign national has to go to a U.S. Embassy or Consulate to attend a visa interview.
- The visa holder applies to the U.S. Customs and Border Protection (CBP) upon entry to be classified under the H-1B status.
These are four basic steps to start working in the U.S. under the H-1B status. Let’s look at the process in more detail.
- H-1B Classification: an employer, the Petitioner, submits Form I-129 to USCIS on the behalf of a foreign national, the Beneficiary.
- Once Form I-129 is approved, an applicant needs to request a visa interview in the country of origin.
- A foreign national should have a valid offer of employment from a U.S. employer.
- A prospective worker needs to hold a job in a specialty occupation.
- An applicant should be able to provide evidence that he or she has a bachelor’s degree or higher, or its U.S. degree equivalent.
- A prospective employee has to earn a salary that is equal to or exceeds a current prevailing wage in the field, in a specific county or geographical location.
#3 Application Date
- An H-1B petition cannot be filed by an employer more than six months before the actual date a prospective worker starts working in the United States. The earliest date a foreign citizen can be hired is October, 1st of each year.
- Therefore, an employer needs to submit an H-1B petition on a potential employee’s behalf by April, 1st.
- The cap for H-1B visas is usually reached almost immediately. An employer must have all the required documentation ready by April, 1st. Our recommendation is to have a job offer sent to a prospective foreign worker by February, an LCA filed and submitted by March, and a complete Form I-129 sent to USCIS by express courier so that it arrives precisely on April, 1st.
#4 U.S. Department of Labor Certification
- An employer files an LCA to the U.S. Department of Labor on an employee’s behalf. The employer needs to create and account at https://icert.doleta.gov/. The Department of Labor typically takes up to 7 days to approve or reject a LCA. The rejection is accompanied by a listing of problems with the LCA. The employer may resubmit the LCA, after addressing the problems.
- After an LCA is approved by DOL, an employer has to access his or her account at iCERT to print and sign the approved LCA. An employer leaves one copy for their internal file and submits one to USCIS with Form I-129.
#5 H-1B Classification
- After DOL approves the LCA, an employer can start preparing Form I-129. To do that, he or she needs to download the form here, print and fill it out.
- Aside from Form I-129, an employer needs to enclose evidence to a prospective employee’s H-1B visa petition. These include an approved LCA, employer support letter, documents that certify an applicant’s specialty occupation, a bachelor’s degree or its equivalent, a copy of an applicant’s license (if required by industry standards) and a job offer.
- In case the holder of the H-1B visa wants to extend his or her status, it is necessary to provide copies of the I-94 card, a USCIS approval notice, and documents that prove employment status.
- A final step is to pay the filing fee (the cost can range from $460 to $7,000) and mail the application to USCIS.
#5 Application for Foreign Workers Outside the United States
- A foreign national has to wait until Form I-129 is approved by USCIS
- The foreign national then has to complete Form DS-160 at https://ceac.state.gov/genniv/ and print the DS-160 confirmation page
- Once the employer sends the foreign national a copy of the petition and approval notice the foreign national should schedule a visa interview and prepare all the required documentation: copies of the visa application fee, DS-160 confirmation page and approved I-129 visa petition
- Once a foreign national has attended a visa interview, he or she needs to wait until their passport with an H-1B visa is delivered
This is an overview of the H-1B visa application process. To learn specific details related to an applicant’s country of origin, please visit the website of the U.S Embassy or Consulate in your country.
How to Extend an H-1B Visa
In the overwhelming majority of cases, the H-1B visa can be extended or revalidated once for three years. The process is the same as applying for an initial H-1B visa. Those who have already gone through the lottery, do not need to go through a lottery again. They are cap-exempt, as they have previously been counted under the cap. The following are required:
- A passport with the H-1B visa. The passport has to be valid for at least six months, and the visa needs to be extended at least two months before the passport expires.
- A copy of Form I-94
- A copy of previous H-1B approval notice (I-797)
- A support letter from the employer. It needs to feature all of the required details and explanations as to why an H-1B visa should be extended.
Once a current or new employer has filed an H-1B petition for the employee and it has been approved, the employee can continue to work in the U.S. without having to leave the country.
How to Transfer H-1B Visa to Another Employer
Foreign highly-skilled professionals who work for U.S. employers can easily transfer their H-1B visas to another employer. This provides them with the possibility of finding a new job with an employer who is willing to help him or her change status and potentially receive a Green Card.
To do that, the following steps are necessary:
- A new employer has to submit the required documents to USCIS for the H-1B transfer applicants. These are copies of Form I-797, Form I-94, relevant passport pages with visa stamp(s), social security number, diplomas, work experience letters, a state license (if needed). Additionally, recent pay stubs, W-2 tax returns, resume and approval notices are needed.
- In case a foreign worker has dependents in H-4 status, he or she needs to enclose the following documents for each: copy of passport, copy of I-94 card, copies of marriage and birth certificates (if any). These are also submitted by a new employer.
- Once the H-1B transfer petition is submitted and an employee has received the receipt notice, he or she can start working for a new employer.
What is H-1B Recapture and How to “Recapture”?
The law generally limits the amount of time an individual is permitted to remain in the United States in H-1B status to a total of six years. However, the USCIS allows a person in H-1B status to “recapture” time spent outside the United States during the course of stay. When filing a petition to extend the relevant non-immigrant status, a petitioner may request that the period of time a beneficiary spent abroad be added to the end the individual’s status period. This option can be a key component of an overall immigration strategy.
To request a recapture of the time spent abroad, the USCIS requires that the foreign national provide evidence of his/her absence from the United States during the claimed trips. Evidence of time away from the U.S. is required. The best evidence is passport stamps. Therefore, foreign workers who may want to take advantage of recouping some H-1B time in the future should: 1. make copies of all passport exit and entrance stamps (before they are covered by other stamps); and 2. keep a copy of an old passport before it is surrendered for renewal. Unfortunately, sometimes the passport stamps are illegible. It is often better, to supplement this proof of travel with plane tickets, dated receipts from hotel stays, and/or other charges on the credit card with travel costs or purchases.
The process for filing for recoupment is the same as filing for a H-1B extension above.
The H-1B nonimmigrant worker visa has been a legal pathway to permanent residency and U.S. citizenship for decades. Over one million talented aliens have become U.S. citizens since the H-1B visa program was launched in 1990. They have made, are making, and will continue to make the United States a more competitive country (provided President Trump does not abolish the program).
I encourage highly-skilled workers to consider applying for a H-1B visa. This is still one of the easiest options to come to work in the U.S. legally. I hope this guide will help you in the process.