For many highly skilled foreign workers, the H-1B visa program offers a valuable opportunity to work and reside in the United States. This nonimmigrant visa category allows employers to temporarily hire workers in specialty occupations that require theoretical and practical application of a body of highly specialized knowledge.
In this guide, we’ll walk you through everything you need to know about the H-1B visa program. Whether you’re a foreign professional looking to bring your skills to the U.S. or an employer seeking to tap into global talent, understanding the H-1B landscape is critical to making your American dream a reality.
Who Is Eligible for an H-1B Visa?
At its core, the H-1B program is designed for workers coming to the U.S. to perform services in a “specialty occupation.” But what exactly does that mean? To qualify for the H-1B classification, both the job itself and the foreign worker’s qualifications must meet certain criteria.
First, the position must require a minimum of a bachelor’s degree or its equivalent in a specific field of study as a standard prerequisite for entry. This means that the degree requirement can’t be an employer preference but rather an industry norm or a natural consequence of the role’s specialized, complex duties.
Some common examples of H-1B specialty occupations include:
- Engineers, scientists, and mathematicians
- Computer programmers, systems analysts, and software developers
- Professors and teachers
- Accountants, financial analysts, and economists
- Lawyers, architects, and journalists
- Healthcare professionals like doctors, nurses, and physical therapists
Second, the foreign worker must have at least a bachelor’s degree or its equivalent in a field directly related to the specialty occupation. Equivalent education and experience can sometimes be substituted for a formal degree, but it must be clearly documented and evaluated. For example, three years of progressive work experience in the specialty may be considered equivalent to one year of college study.
In addition to these core requirements, there are a few other prerequisites for H-1B eligibility:
- The employer must attest that they will pay the H-1B worker the higher of the actual or prevailing wage for the occupation in the geographic area of employment. This is to ensure that foreign workers are not used to undercut American wages.
- The H-1B worker must be coming to the U.S. to perform services in a specialty occupation for a specific employer. Self-employment or independent contractor arrangements are not permitted.
- The H-1B petition must specify the work location(s) where the foreign worker will be employed. If the worker is placed at a third-party worksite, additional documentation may be required to demonstrate a legitimate employer-employee relationship.
- The H-1B worker must be maintaining a foreign residence that they have no intention of abandoning. This is because H-1B is a nonimmigrant visa category, meaning it’s intended for temporary stays rather than permanent immigration.
There are some limited exceptions and variations to these general H-1B requirements. For example, certain noncitizen employees working on Department of Defense research and development projects may qualify for H-1B2 classification with slightly different criteria. Similarly, fashion models of distinguished merit and ability can pursue H-1B3 visas. However, the vast majority of H-1B petitions fall under the regular specialty occupation category.
It’s important to note that simply meeting the H-1B eligibility criteria does not guarantee visa approval. The U.S. Citizenship and Immigration Services (USCIS) will closely scrutinize each petition to ensure compliance with all regulatory standards and to detect any signs of fraud or misrepresentation. Working with an experienced immigration lawyer can help you put together the strongest possible case.
The H-1B Application Process: Step by Step
Obtaining an H-1B visa is a multi-step process that involves several government agencies and requires close coordination between the employer and the foreign worker. Here’s a general overview of the key stages:
Step 1: Prevailing Wage Determination
Before filing an H-1B petition, the sponsoring employer must obtain a Prevailing Wage Determination (PWD) from the U.S. Department of Labor (DOL). This step is crucial to ensuring that the H-1B worker will be paid a fair wage that does not undercut American workers in the same occupation and geographic area.
The PWD can be obtained by filing Form ETA-9141 with the DOL, either electronically or by mail. The PWD is valid for the specific job opportunity and geographic area requested, and it must be used in filing the Labor Condition Application (LCA) in the next step.
Step 2: Labor Condition Application
After obtaining the PWD, the employer must file Form ETA-9035/9035E, the Labor Condition Application, with the DOL. In the LCA, the employer makes several attestations regarding the wages, working conditions, and benefits offered to the H-1B worker, as well as the lack of any strike, lockout, or work stoppage at the place of employment.
The employer must also notify its workforce of its intent to hire an H-1B worker and maintain documentation of compliance with all LCA requirements. The LCA is typically adjudicated within seven business days and is valid for up to three years.
Step 3: H-1B Cap Registration
The next step is to register the prospective H-1B worker for the annual visa cap and lottery. The U.S. government currently limits the number of new H-1B visas each year to 65,000, with 20,000 of those set aside for workers with advanced degrees from U.S. institutions. If the number of registrations exceeds the available visas, USCIS conducts a random lottery to select the petitions that will be processed.
Step 4: Petition Filing
If a worker is selected in the H-1B lottery, the employer has a 90-day window to file the H-1B petition on their behalf. This is done by submitting Form I-129, Petition for a Nonimmigrant Worker, along with the certified LCA and a comprehensive package of supporting evidence to demonstrate eligibility for H-1B classification.
The petition must include detailed documentation of the job opportunity, the worker’s qualifications, the employer-employee relationship, and the filing fees.
Step 5: Petition Adjudication
After receiving the H-1B petition, USCIS will review it for completeness and eligibility. If any additional information or clarification is needed, the agency may issue a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID). The employer typically has 30 to 90 days to respond to these notices and provide the requested documentation. If the petition is approved, USCIS will send an approval notice and an I-797 Notice of Action indicating the duration of the H-1B status.
Step 6: Visa Interview and Entry
If the H-1B worker is outside the United States, they must apply for an H-1B visa at a U.S. consulate abroad before entering the country. This typically involves submitting Form DS-160, paying the visa application fee, and attending an interview with a consular officer. The officer will review the worker’s qualifications, purpose of travel, and ties to their home country to determine eligibility for the visa.
If approved, the worker can use the H-1B visa to enter the U.S. up to 10 days before the start date of their employment. If the worker is already in the U.S. in another nonimmigrant status, they may be able to change their status to H-1B without leaving the country.
It’s important to note that this is a general overview of the H-1B process, and individual cases may have additional requirements or complications. For example, if the H-1B worker will be placed at a third-party worksite, the employer may need to provide additional documentation of the work arrangement and the right to control the worker’s employment. Similarly, if the worker has any prior immigration violations or criminal history, additional waivers or legal proceedings may be necessary.
A knowledgeable immigration lawyer can help employers and workers assess their eligibility, gather the necessary supporting evidence, and troubleshoot any potential issues before they become roadblocks. They can also help develop backup plans and alternative strategies in case of any delays or denials in the process.
Contact an Experienced Immigration Lawyer
If you’re an employer seeking to tap into the global talent pool or a foreign worker dreaming of bringing your skills and passion to the United States, don’t let the complexity of the H-1B program hold you back. Seek out the guidance and support you need from an immigration attorney to put your best foot forward. With determination, diligence, and the right legal advocate in your corner, your American dream can become a reality.
At LegalMatch, we understand the challenges and opportunities of the H-1B visa program. Our network of experienced immigration attorneys is ready to help you navigate this process with confidence and clarity. Whether you’re just starting to explore your options or facing a specific legal hurdle, we can connect you with the right legal team for your needs.
