An H-1B visa, also known as a specialty occupation visa, is a type of temporary nonimmigrant visa that is issued to foreign nationals who have special training to perform work for a certain job that is located in the United States. The main requirement to meet the definition of what is considered to be a “specialty occupation” and therefore enable a worker to apply for an H-1B visa is as follows:
- Have a bare minimum of at least a bachelor’s degree (if not higher) or its foreign equivalent in the field that matches the position for which they are applying;
- Have either an unrestricted state license, certification, registration, or some other form of an accreditation that allows them to perform the duties required of the occupation; or
- Have received special training or has experience in the industry for twelve years or longer that would give them the level of expertise to successfully perform the primary functions of the job.
For example, an eligible foreign national worker may apply to a U.S.-based employer’s posting for a biologist. If both the foreign national worker and U.S. employer meet the eligibility criteria required for an H-1B visa, then the foreign national worker may temporarily stay in the United States to work as a biologist for that employer.
In addition, an H-1B visa will remain valid for a period of up to three years, which can then be extended to a maximum of six years in total. After that, the foreign national worker will either need to return to their country of origin or may be able to apply to become a lawful permanent resident of the United States.
If you are interested in applying for an H-1B visa, you should contact a local immigration attorney immediately for further guidance. You should also contact an attorney if you would like to turn your H-1B visa into a green card and/or if you need help with some other immigration-related matter.
What Are the Qualifications for a H-1B Visa?
As discussed above, an H-1B visa can only be issued to foreign national workers who have certain skills. This means that an H-1B visa applicant must meet all of the professional and educational requirements before they will be considered eligible to apply. However, it is not only an applicant who must meet the qualifications, but the occupation that they are applying for must also meet specific guidelines.
For example, in order to qualify for an H-1B visa, an employer must post an opening for an occupation that fulfills the following requirements:
- The occupation must be one where an employer has the capacity to control the manner in which the work is performed and the amount that an employee will be paid;
- Both the occupation itself and job posting must state that it requires a minimum of a bachelor’s degree or the foreign equivalent of one to be hired;
- The occupation is one in which job candidates are typically required to hold a bachelor’s degree; and
- The occupation is so specialized or complicated that only workers who hold a bachelor’s degree or higher would be able to perform the work (e.g., accountants, lawyers, doctors, surgeons, etc.).
How Long Does the Filing Process Take? What Types of Documents are Needed?
In general, the H-1B application process can take anywhere from a few weeks to several months to officially complete. There are some situations, however, where an applicant may be able to apply to have this process expedited. If approved, this can shorten the amount of time it takes to process their application. It should be noted that an applicant will need to pay additional fees to have their application expedited.
The reason as to why the process takes as long as it does is because of the number of documents that are needed for different filings as well as the number of U.S. government agencies that a U.S. employer will have to go through before an H-1B visa application can be approved.
Some examples of the types of documents that U.S. employers and/or foreign national workers may need to submit include:
- A Labor Condition Application (“LCA”) and the corresponding certification issued by the United States Department of Labor (“DOL”);
- A Form I-129, Petition for a Nonimmigrant Worker (located on the USCIS website);
- A detailed job description that contains the minimum experience and educational requirements for the position;
- Proof of a foreign national worker’s degree, job offer, and a copy of their resume;
- A Form DS-160, Online Nonimmigrant Visa Application;
- A Form I-797, Approval Notice;
- Letters from an applicant’s current and previous employers; and
- Various other supporting documentation.
In addition, if there are any errors, mistakes, or inaccurate information provided on the H-1B forms, then this can cause an application to be delayed. Thus, it is important that applicants strictly adhere to all requirements, submit as much supporting evidence as possible, and ensure that each document they file has the correct and complete information.
What If I Get Laid off or My Company Goes Under?
A foreign national worker must be employed in order to maintain their H-1B nonimmigrant status. Accordingly, if their current employer terminates them, the worker gets laid off, or the company they work for goes out of business, then they will likely lose their visa and thus no longer have lawful H-1B status. In such a case, they should speak to an immigration lawyer immediately.
There is one exception and that is if there is an opening at another branch of the company in the United States and the employer agrees to transfer them to that position. However, this is a very rare situation and will typically require filing additional documents as well as potentially having to attend another interview with U.S. immigration officers.
It also should be noted that in the event that a U.S. employer decides to terminate a foreign national worker before their H-1B visa expires, they will become liable for the amount that it costs for the worker to return to their home country.
Do I Need a Lawyer for Help with a H-1B Visa?
H-1B visas happen to be one of the more popular and favorable categories of U.S. visas issued to nonimmigrants for temporary work purposes. However, the process to obtain an H-1B visa involves many complicated steps and not everyone who is eligible may receive one since there is a cap on the amount of H-1B visas that can be distributed each year.
Thus, if you or a loved one is thinking of applying for an H-1B visa, then it may be in your best interest to speak to an immigration lawyer for further legal advice. An experienced immigration lawyer will be able to assist you with the difficult application process and can make sure that you comply with all of the necessary requirements. Your lawyer can also help you resolve any issues that arise in connection with your H-1B application.
In addition, your lawyer will be able to guide you through the renewal process if you need to extend your stay. Alternatively, if you prefer to apply for a green card after your H-1B visa expires, your lawyer can help you to convert your current immigrant status to that of a lawful permanent resident instead.
Finally, if you are summoned to appear before an immigration judge due to an immigration matter that needs to be addressed, your attorney will be able to represent you in court as well.
